All It Takes Is Two Words To Wipe Away One Of The Pillars Of Free Speech Online
from the don't-let-it-happen dept
We’ve written a few times about the efforts of most states’ attorneys general to seriously hinder innovation online by effectively gutting Section 230 of the Communications Decency Act, by saying that it doesn’t apply to state crime laws. As we’ve discussed, the change may look simple — it merely adds two words to Section 230: “or state” — but the impact would be tremendous. As Derek Khanna has recently pointed out in two separate articles, Section 230 can quite reasonably be credited with enabling much of the internet innovation we all enjoy today, and the inclusion of just those two tiny words could bring a lot of internet innovation to a screeching halt.
And, even worse, those two little words could have a massive impact on free speech online.
A quick explanation may be helpful. The basic idea behind Section 230 is that it provides safe harbors to internet services, noting that they are not liable for things their users do online (with intellectual property infringement exempted). It is most often used in defamation cases, but applies in other situations as well. The concept is important even if it’s a simple one: we don’t blame the tool provider when the tool is abused. We don’t blame AT&T when a phone is used in a crime, just like we don’t blame Ford because one of its cars was used in a drive-by shooting. Unfortunately, on the internet, some people just love to blame the service providers for breaking laws, rather than the actual users. What Section 230 does is make it quite easy to do a course correction on such lawsuits, allowing the service provider to dump the lawsuit quickly, and effectively tell the suing party: “hey, focus on who actually broke the law, not us.”
Why is that so important? Because if service providers are potentially liable for the actions of their users, they’re a lot less willing to provide platforms and services that the public can use. The liability risks become too high, too fast. Even the cost of defending bogus litigation can wipe out a small company. What Section 230 does is let companies being sued get rid of those lawsuits much more quickly and cheaply than they’d otherwise be able to. And that, in turn, is essential for enabling free speech online. Because service providers can build their platforms and services to allow for free speech, safe and secure in the knowledge that if someone abuses those speech privileges, the site owners won’t be held liable. Without Section 230, for example, it would be very, very risky for sites like this one to have a comments section. Or any newspaper or blog site. Or Twitter. Or Facebook. Or YouTube. These tools that have become essential to enabling public speech likely wouldn’t be around.
And nearly every state’s attorneys general wants to kill it off.
Why? So that they can grandstand against websites they don’t like online, because some of their users do bad things. Rather than using those sites as a tool to find the people doing bad things, it gets a lot more press attention for the various attorneys general to just go after the company itself. The end result, though, would be many fewer online services, much less internet innovation and a massive dampening of free speech online.
Because of two little words.
Section 230 has been an astounding success in enabling tremendous new platforms that have, in turn, encouraged all kinds of valuable expression. We shouldn’t wipe that out with two little words designed to help some politicians blame companies for the things their users do.
Update: A few people have reasonably complained that we didn’t fully explain the change in the law, so we’ll add in the details here. Sorry about that. Basically, as the law stands, it exempts federal criminal activities from the bill, which isn’t a huge issue, because it’s rare that activities by users on a site reach the level of federal criminal law in a manner that would turn focus on the site itself. What the states AGs want to do is exempt state laws as well, which would be a much bigger deal. The law, after the change, would read as follows, with the bolded portion being the two new words:
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal or State criminal statute.
This makes a huge difference because the state AGs are much more likely to use various laws to target sites for the actions of their users — and in fact have made it a habit to threaten sites who are clearly protected by Section 230, because it makes headlines. In recent years, we’ve seen AGs accuse sites like Google, Craigslist, Topix and more of breaking laws, when it was really their users doing so.
Filed Under: free speech, innovation, secondary liability, section 230
Comments on “All It Takes Is Two Words To Wipe Away One Of The Pillars Of Free Speech Online”
News @ 7
Government thugs want more power to control what people say or do online, be it directly arresting children who make jokes about shooting people in a game chat/voice session or by taking the filth called ISP’s & Host’s that shelter these ‘civilians’.
just in case… [/sarcasm]
First, Mike, learn about capitalization: it's "or State".
Now, how bad would it be?
Say, that’s some SCARY change! Imagine enforcing “state criminal law” on teh internets!
Mike NEVER wants “Internet companies, including potentially their executives” to EVER have ANY responsibility or face any consequences for what’s on the site. Mike again tries to carve out the phony “platform” exemption for businesses. But in a civil society, everyone IS responsible to some degree, within common law limits.
Of course the corporations that benefit from the Internet just want to dodge all drawbacks. That’s basically one rule for them, another for us.
Teh internets has had a fairly explicit exception to some laws that apply everywhere else. I don’t agree that teh internets is particularly helpful to public discourse*, and I’m QUITE sure that vulgarity and threats don’t build a civil society. Rail about “free speech” and “3rd party liability” all you want, but this isn’t the doom you try to make it.
[* As discussed on “Car Talk”: two idiots know even less than one does.]
Re: First, Mike, learn about capitalization: it's "or State".
I can name hundreds of idiots that know more than you.
Re: Re: First, Mike, learn about capitalization: it's "or State".
I can name hundreds of potatoes that know more than ootb.
Re: First, Mike, learn about capitalization: it's
word number #35,689 that OOTB doesn’t understand: exception
Re: First, Mike, learn about capitalization: it's "or State".
Mike again tries to carve out the phony “platform” exemption for businesses.
That is not a “phony” anything, Blue. It’s been an integral part of our society since at least the Industrial Revolution. We have never held gun manufacturers liable for making guns that are used in crimes, have we? Or even before that have we ever held the blacksmith responsible because someone used a sword he made to kill another?
You are making the same stupid assumption that has gotten our patent system into the mess it’s in now: “It’s different because it’s on a computer”. It’s NOT different and anyone with a shred of intelligence could see that.
Re: First, Mike, learn about capitalization: it's "or State".
“Mike NEVER wants “Internet companies, including potentially their executives” to EVER have ANY responsibility or face any consequences for what’s on the site.”
Let me fix that for you: Most people with half a brain don’t want Internet companies to have responsibility or face any consequences for user-generated content on their site. The reasons for this are so obvious and such simple common sense that I struggle to believe you’re not just an obnoxious troll instead of genuinely clueless.
But if you truly do stand behind your ravings, perhaps you can directly address the analogous examples Mike provided. Why don’t you also blame AT&T when a phone is used in a crime or Ford when one of its cars was used in a drive-by shooting?
Re: First, Mike, learn about capitalization: it's "or State".
Oh my fucking god.
You open with First, Mike, learn about capitalization: it’s “or State”.
and then proceed with
…SCARY….EVER..ANY…QUITE.
YoU DonT knoW tHe firsT tHING abouT capiTaliSation.
You are an obnoxious fuck.
I don’t agree that teh internets is particularly helpful to public discourse*,
your confusing the internet with the US government.
Re: Re:
Do you know the Internet is predominantly porn and infringement? Essentially a cesspool.
And “innovation”??? LMFAO. The primary things that the Internet is helpful for, email and public discussion, have been around for twenty years.
There’s no free speech issue. Not a single one. But there might be profit issues for the greedy, blubbery fat cats at Google that exploit creators. Those are the robber barons that Masnick is trying to pimp “free speech” for.
Nobody is fooled by this tech lobby bullshit. Nobody.
Re: Re: Re:
“And “innovation”??? LMFAO. The primary things that the Internet is helpful for, email and public discussion…”
If that’s all the internet is to you, then I suggest you throw out your AOL CD and catch up with the times geezer.
LMFAO:STFU
Re: Re: Re: Re:
Nice job at listing the rest of its many “innovations”… Lol
Re: Re: Re:2 Re:
http://lmgtfy.com/?q=internet+innovations
Re: Re: Re:3 Re:
Well that was unenlightening.
Everyone punts on this.
Because they know there’s nothing there that telephone/cable wires weren’t already capable of or even doing.
Re: Re: Re:4 Re:
I love how you sneak ‘wires’ in there so that no matter what anyone responds with you can pretend that because it’s using the same fiber or the same copper it’s not an innovation. No, my Luddite friend, the fact that it’s on the same wires makes it more innovative, not less.
Re: Re: Re:4 Re:
Because they know there’s nothing there that telephone/cable wires weren’t already capable of or even doing.
That’s inherently false. Without the innovation of packets and packet routing those wires would still be limited to carrying a very small amount of information like a single phone call or a very small spectrum of video signals. You wouldn’t be able to have DSL and a voice line on the same phone line. You would be limited to a few TV stations from your cable company.
Re: Re: Re:4 Re:
The medium is not the message.
Re: Re: Re:2 Re:
Don’t you have some looms to destroy?
Re: Re: Re:3 Re:
Why is he on the internet if it’s so bad?
Re: Re: Re:4 Re:
The benefits of having a place to complain and feed your ego by getting attention, even if it’s the bad kind, are much more readily accessible online. In the physical world, you only have your own bridge to hang out under and only billy goats to harass.
Re: Re: Re:4 Re:
Why is he on the Internet if it’s so bad?
Because he’s a fucking freetard, that’s why.
Re: Re: Re:
If the MAFIAA have their way, only edited material that is passed by a gatekeeper will be available on the Internet. This has would return freedom of speech to the pre internet days. You could speak freely to :-
1) those that are in range of your unaided or amplified voice.
2) Those people you can ring up or write to.
3) Those people you can afford to give or send a flyer or pamphlet to.
Beyond that you have to get your speech past a gatekeeper, which for more than a letter to the editor, can take months, or even years to achieve. Obviously those in power can insist on newspapers publishing their speech, and the rich and powerful also have and advantage in this respect. For most people, the range of their speech will be limited to those people that they associate with in the real world.
What the Internet offers is a cheap way for anybody to make their speech available to wide audience. There is no guarantee that they will reach such an audience, but at least they can try. Instigate gate keepers at the service level, by forcing secondary liability, and all the blogging platforms, social media and the like can be made to disappear, because they cannot let anything appear on their servers without it being passed by an editor. This appeals to politicians, because it eliminate most public discussion of their policies, while leaving them able to promote themselves and their parties. Hint, new[papers are usually a poor forum for discussing politics, and any that do are easily marginalised.
Re: Re: Re: Re:
“If the MAFIAA have their way, only edited material that is passed by a gatekeeper will be available on the Internet.”
MAFIAA or MASNICK ??
Re: Re: Re:2 Re:
Someone who knows not to put spaces in front of question marks.
Which means not you, you solar panel-fucking dipshit.
Re: Re: Re:
Glad to know you are a nobody, as you seem to be fooled quite easily.
Using your logic, You do know that guns are used primarily for killing people and stealing (military anyone?)
Re: Re: Re: Re:
over here, where I’m at they’re used primarily for hunting. of course, unfortunately, much of the time it’s for sport 🙁
“hey look at the points on this one”, yeah I give a shit.
Re: Re: Re:
average_joe just hates it when due process is enforced.
Re: Re: Re:
Do you know the Internet is predominantly porn and infringement?
And don’t forget the clueless jackasses, trolling around. Exhibit A: your post.
Thanks for playing.
Re: Re: Re:
I don’t know that but then again neither do you, you just made it up on the spot.
First of all, I can’t say I agree that those are the limit of ‘the primary things.’ Second, so what if they’ve been around for twenty years? They don’t count because the innovations came early in the internet’s lifetime? Third, e-mail and public discussion has evolved considerably since 1993 which any idiot can readily see.
There’s no such thing as money! Oh, I thought we were shouting puerile sloganisms that don’t mean anything or have any grounding in reality… How could a blocking of speech ever not be a free speech issue? It can’t.
There’s always an ad hom.
That’s why SOPA passed with broad support from the public… oh wait!
Context?
Could you maybe add some context to the statement that “or state” is added to S230? What is “or state” added to?
Re: Context?
I logged in to make the same comment. Context is important when trying to make a point, while the article does go on to explain, it leaves me wondering how ‘or state’ fits in the whole thing.
I could look it up sure, but im not the one trying to prove a point.
Re: Context?
Without the actual quote of the actual line (current and proposed) this article is missing the essential info.
Re: Re: Context?
“or state”
I think it’s something about Oregon?
Re: Context?
From the Slate article:
Re: Re: Context?
Oh, I get it. Hey, ootb! I’ma do you a favour.
Like children? Then you’ll love these stories, images, and movies. Get them fast before the law gets me!
There ya go. I just got Techdirt shut down so you don’t have to read anything Mike Masnick has to say here ever again. Or you could just leave and do the online world a favour.
What the next step for grandstanding politicians, make pub and club owners responsible for what is said on their premises. That would provide a tool to stifle political dissent.
/sarc (maybe)
To the State Attorney Generals:
Thanks for helping kill the Internet, as if the NSA hasn’t done enough damage already. I appreciate you guys’ efforts in turning us into China or Vietnam because you can’t do your jobs right. Speaking of which, I’d prefer you move to those places and leave the rest of us alone. It’s more cost effective and less damaging to the US economy that way.
Please resign and let someone braver, more competent, and less senile take over.
Re: Re:
Sad bit is that the NSA doesn’t intend to kill the Internet.
It just wants to monitor and record every move the Internet makes. 24/7. For the rest of eternity.
Suddenly I think I understand how uncomfortable it is to be an animal trapped in a cage.
Re: Re: Re:
True, but if the NSA is successful, they will have killed the internet.
People who value being able to speak freely will simply shift to one of the several darknets to do so (as many are doing now), leaving the internet basically indistinguishable from cable TV.
This means that for the NSA’s purposes, the internet will be dead. For the purposes of people who actually use the internet for honest communication, it will be dead. For the cable TV companies, it will be a huge windfall.
Which, I suspect, is really the whole point.
Re: Re: Re: Re:
[tinfoil hat on]
I’ve got it!! Cable TV/Hollywood is in bed with the NSA because the NSA’s tactics are slowly wiping out all that pesky Internet innovation, in order to restore Hollywood to its rightful place as the be-all, end-all of entertainment gatekeepers once again!
[/tinfoil off]
In other words, the secret world of the Deep Web/darknets will get a lot more crowded if the NSA is allowed to continue their privacy-invading shenanigans unopposed.
Sigh.
Maybe if the Gen. Trekkie in charge of the NSA wasn’t so obsessed with sucking up Big Data, he might stop long enough to realize that perhaps the NSA’s current methods are only making things worse for everyone.
These state AGs aren’t just trying to play catch up with the constantly chaotic evolution of the Internet. They’re blatantly trying to smother what has become the very soul of the modern Worldwide Web.
Re: Re: Re: Re:
I’ve suspected that this is a primary motivation for those entrenched media delivery players for quite some time now too. They’re putting up a good fight for a bunch of vengeful idiots though. They might get a couple more castles built before the tide comes in.
As for recent intelligence collection revelations well that’s just pure lunacy on multiple levels but the DOD beast needs to be put back in its cage post haste.
As someone nicely summarized somewhere else: Authority is marching roughshod over all people and their authority is unchecked. That can only get worse.
Re: Re:
China or Vietnam? I thought North Korea was the model.
Because service providers can build their platforms and services to allow for free speech, safe and secure in the knowledge that if someone abuses those speech privileges, the site owners won’t be held liable. – Speech is not a privilage in the USA, it is a Constitutional RIGHT…
What is the point of this article?
Is this a call to action, a scream about a bad law, or simple education? More context please!
Re: What is the point of this article?
The articles need to have a point now?
Dark Helmet is in trouble…
What's good for the goose
If they want ISP’s to be held personally liable for the actions of those that use their services, I think it’s only fair that the AG’s are held personally liable for any crimes committed in their state.
Re: What's good for the goose
Just to keep things on the level, I would like to be able to blame the automobile manufacturer every time I get a speeding ticket. They’re guilty for selling a car that goes too fast, right? I guess the dealer would be liable too, since they should just “know” that I’m a lead foot, right?
Nitpicking on capitalization? Nice opening gambit there OOTB.
I’m guessing you missed the finer points of the article on how if this get’s amended, it means things a plenty change for the bad(I won’t spell it out for you, you can re-read the article if you like, and I don’t need you nitpicking my comment either, you’re welcome).
Nothing like having unhinged state AG’s just going absolute bat shit crazy on waging a semi-personal war on ISP’s and future innovation. And I assure you, any AG stepping up/foaming at the mouth to do these kind of lawsuits are doing nothing more than padding their careers for future personal gain and not for the good of the people.
Freedom is never volunteered by the oppressors, it must be demanded by the oppressed.
That is going to become crucial in the coming years.
Re: Re:
Yes. As Aldous Huxley once said, liberties are not given, they are taken.
Re: Re: Re:
Voted Insightful for the reference.
Context
Some 47 state attorneys-general are pushing to make this language include state criminal statutes. All it would take, then, is a claim that section 230 is impairing their enforcement, and with that the safe harbor protection would be destroyed.
assumptions
I’ve noticed a tendency for you – Tech Dirt – to write as though the rest of the world is in your head… This story is interesting but without a thorough knowledge of the law the addition of “or state” is meaningless.
You don’t define acronyms CPB is an example, you assume that we are all in the head of the writer and you use vague inferences as if the world is in lockstep with your thinking. Poor journalism…
Re: assumptions
“You don’t define acronyms CPB is an example…”
Did you miss the first sentence of that article?
Re: Re: assumptions
In AC’s defense this:
By now we’ve all heard plenty of stories about ridiculous goings on at the border by Homeland Security’s Customs and Border Patrol agents
should read like:
By now we’ve all heard plenty of stories about ridiculous goings on at the border by Homeland Security’s Customs and Border Patrol (CBP) agents
I believe that’s the traditional means of establishing acronym usage in any given text, to define it upon first reference for later usage in the same body of text.
I think it’s more of a courtesy and clarity thing more than a rule but it could be a rule I guess.
That and the “or state” thing was most definitely not clear when presented nor was it clarified very shortly thereafter but, like CBP, not very difficult to qualify either (though Canadian Border Patrol popped into my head by default on the first pass)
Three words
HELD FOR MODERATION…
C’mon Masnick you do it as well, it’s a power you simply cant stop yourself from abusing !!!!
Re: Three words
Two words, fucktard: SPAM FILTER.
Innovation will find a path
because of the laws as it stands the US has had a natural advantage with internet innovation, but this string of legal efforts to shoot the US in the foot is good for innovation elsewhere, development of economies outside the US, good work US State/Federal Politicians, working hard for overseas economies
Gut Section 230
If the comments on this site or any other constitute free speech, then it’s time for censorship of such across the board.
The elitist posters here routinely censure ootb. Quite a role reversal. The 99%s are censuring the 1%s.
Take your free speech elsewhere.
I know, I know: “Waaaaaaaa! We want free speech!”
Bollocks.
Re: Gut Section 230
You’ve got to be kidding. Look kid, I’ll give you the benefit of the doubt that you might actually be OOTB. I happen to be one of the guys who punches the “report” button after about 90% of his posts. If you read a bunch of them, they all start to sound the same. If it’s not some attack that has nothing to do with the article it’s posted on, it boils down to bla bla Google sucks, bla bla Mike won’t tell me what his stance is bla bla bla. It’s tiresome and childish, and many of us are just tired of it. On occasion he has managed to put something out there that’s at least thought provoking, and in those cases, I swallow my pride and hit “insightful.” He has an opinion or two about taxing the hell out of what he calls “unearned income” (from patent/copyright trolling, etc) that I can certainly agree with, but that’s about it.
No one here has ever censured him, nor have they CENSORED him, for that matter. Every single one of his diatribes has always been and continues to be exactly ONE CLICK AWAY, so if that’s your thing, go read them. Despite being behind a mouse click, his posts still manage to generate a series of responses that take his points head on, so I challenge you to read those too.
It takes many people clicking “report” to make a post hidden. It shouldn’t take a rocket scientist to figure out why it’s always him.
Re: Re: Gut Section 230
except for the ones that ARE CENSORED, that you NEVER get to see..
Ain’t that right Mikie !!!!
Re: Re: Re: Gut Section 230
Wow, they obviously didn’t teach “click to show it” in solar panel engineer school.
Alternative energy is fucked thanks to loons like you running around.
Cut your asshole on a solar panel, you unimaginative twat.
Re: Gut Section 230
You don’t know what free speech is.
Re: Gut Section 230
Bollocks.
That nicely sums up your post as well as your definition of censorship. Now, stop the whining, OOTB.
Re: Gut Section 230
Telling other posters a comment isn’t worth reading isn’t censorship…
just a random commenter here, I’ve never hit the report button but then again I’m neutral to a point.
just wanted to say if you want to get rid of a troll just ignore it, don’t give it any attention and it will eventually get bored and go away.
I learned that from being bullied in highschool, they never got to me but rather I got to them because they knew they had no effect.
updated
Added a short update at the end explaining the specific details of the two words. Apologies for not explaining it clearly.
you know what’s messed up, I read the update and at the end I started thinking that, for all we know, some of them may even be paying people to comment just so they can use it as a reason for accusation.
You know...
It’s not a very big stretch from holding an ISP responsible for a user post, to holding a state government responsible for a crime being committed within that state.
Both situations involve someone misusing the systems, properties or infrastructure in ways that vilate the law, after all.