Section 230 Is Not Exceptional, It Is Not Unique, It Is Not A Gift: It's The Codification Of Common Law Liability Principles
from the get-it-straight dept
There are so many myths about Section 230 that seem to need debunking. There’s the myth that it requires platforms to be neutral. There’s the myth that if you moderate too much you “lose” your status as a “platform.” There’s the myth that Section 230 of the CDA was “a gift” to big tech. None of those are true, and we’ve gone into great detail over the past few years about how Section 230 is designed to encourage the most “good” content, and discourage the most “bad” content. It’s designed as a pretty straightforward balance, and it actually does a pretty good job of that.
However, along with the claims that 230 is a “gift” to tech companies, is the unfortunate similar myth that 230 is somehow “exceptional” or that it treats internet companies “different than any other company.” This has never been true. Instead, it’s really about properly applying liability to the party actually violating the law, rather than putting the blame on the tools and services they use to violate the law. Brent Skorup and Jennifer Huddleston at the Mercatus Center have now put out an interesting paper, highlighting how — far from being a “unique gift” to internet companies — Section 230 was merely the codification of basic common law principles regarding liability.
The paper carefully traces the history of liability in common law, finding that for decades preceding Section 230, the general common law principles had converged on a concept of “conduit liability,” which is more or less what we see in Section 230: you don’t blame the “conduit” for merely passing along the message.
As shown above, even before the creation of Section 230, many courts had shifted from the strict liability regime toward conduit liability protections and fault-based requirements. In many circumstances, liability would not have attached even if the distributor had known of the tortious material, because the social and judicial norms favoring practicable moderation practices and free speech had eroded the traditional liability standards. Section 230, in effect, codified the conduit liability protection that was being applied to traditional media distributors and was sometimes applied even after 1996.
As one federal district court noted in 1994, conduit liability ?[p]rotection for republication . . . has not been rigorously circumscribed within the wire service context.? In its 1999 Lunney v. Prodigy decision, the highest court in New York expressly classified an internet bulletin board operator as a common-law conduit. An internet service provider and bulletin board operator, the court held, ?like a telephone operator, is merely a conduit.? It made no difference to the court, and the ?conduit designation? was still applied, even when the bulletin board operator ?reserves for itself broad editorial discretion to screen its bulletin board messages? and occasionally exercises that discretion. The court explained that even if Prodigy ?exercised the power to exclude certain vulgarities from the text of certain [bulletin board] messages, this would not alter its passive character in the millions of other messages in whose transmission it did not participate, nor would this, in our opinion, compel it to guarantee the content of those myriad messages.?
This doesn’t mean, however, that Section 230 serves no purpose. Having 230 the way it is provides significant procedural benefits, in the form of having cases kicked out of court quickly, before they become too expensive. Without that, many of these cases, even though they would ultimately be unsuccessful if the court were able to decide, would be prohibitively expensive for internet platforms, creating, in effect, a censorship-by-lawsuit system. While we discussed that (link above) in a previous paper, the authors of this paper actually put dollar amounts on it:
Still, Section 230 had a salutary effect at a critical time. A report by Engine estimated that without Section 230, the costs of litigation might be prohibitive for many startups even if they might win the case.155 According to the in-house and external attorneys consulted for the report, having to respond to a user-generated content liability claim through a motion to dismiss could cost $15,000 to $80,000, and having to take such a case through discovery could cost a firm $100,000 to more than half a million dollars.
On top of that, Section 230 took away the uncertainty that some random judge might buck the trend — as happened in the infamous Stratton Oakmont case:
As Ardia points out, the statutory protection provided a ?breathing space? and legal certainty after Stratton Oakmont when online providers made decisions regarding third-party content. Stratton Oakmont derailed the legal trend represented by Cubby and the conduit liability cases. A period of uncertainty?and massive ?collateral censorship??would have ensued because online providers do not know in advance where their users are located. Any provider with users in New York would have been potentially subject to liability for users? posts under the Stratton Oakmont decision. Section 230 precluded that turn of events.
However, the idea that Section 230 is somehow “exceptional” or provides some rare gift that would not otherwise exist is not supported by the history laid out in this paper. Conduit liability — protecting the conduit for passing on such information — was (as the paper lays out in great detail) very much the consensus view among courts, thereby making it the accepted common law, even prior to 230.
Finally the paper notes (as have we) that killing Section 230 will harm competition against the big internet companies at a time when we clearly need more competition:
In summary, Section 230 provides a blanket liability shield for big and small firms. Change that cuts down the liability protection will thus impose compliance costs on all firms. Such change should be explicit about those social costs and also explicit about the advantage it will grant larger firms that have the resources to become compliant. In other words, going from a blanket to a tailored shield, however well intended, must account for the chilling effect it will have on innovation by startups and small firms, and for the artificial barrier to entry in the market that will grant additional protection to incumbent firms.
Either way, as the paper concludes, Section 230 merely was codifying basic common law principles of liability:
The Section 230 reform movement is growing, and many of the reform arguments complain that online intermediaries receive a special dispensation regarding publisher liability. The truth is more complicated. Starting in 1931 and for six subsequent decades, courts gradually chipped away the regime of strict liability for publishers and content distributors owing to the practical difficulties of screening all tortious content and to the potential for restricting First Amendment rights. Those courts found that mass media distributors warranted extensive liability protections, including an important protection for conduit liability. The anomalous 1995 Stratton Oakmont decision risked reversing that legal precedent. Yet Congress solved the dissonance by enacting a law that affirmed the precedent and its rationales?the impracticality of holding online content distributors liable and the potential violations of freedom of speech that would ensue from strict liability. Section 230 established a regime of liability protection for online content distributors just when it was needed?at the time internet firms had started to reach audiences of tens of millions?and still provides liability protection for large and small distributors alike. For all the foregoing reasons, we have argued that Section 230 is good policy.
I will note that the authors do make a few suggestions on ways they think Section 230 could be amended in a few specific cases, though they note that the situations where that makes sense should be narrow and well-defined. An interesting read all around.
Filed Under: cda 230, common law, conduit liability, intermediary liability, liability, section 230
Comments on “Section 230 Is Not Exceptional, It Is Not Unique, It Is Not A Gift: It's The Codification Of Common Law Liability Principles”
Codifying Common Law since 1996
Because you can’t have free speech without protections like 230. How would any user generated content (like this!) be available if a trivial lawsuit directed at the conduit (rather than the poster) could knock everything offline.
Re: Codifying Common Law since 1996
We don’t have free speech. If Twitter and Facebook, etc are going to Moderate the content. Ban people for speech they don’t like, calling it HATE or Racist when it’s not while protecting the REAL HATE on their side that they leave alone, they shouldn’t be protected by 230. They are now a Publisher. Just like a newspaper. Should not have 230 protection.
If they were actually a 3rd party. Staying out of it. Actually allowing free speech, then YES, they should be protected under 230. They can’t have it both ways which is what they have been doing.
Question: For what reason should the law force Facebook to host White supremacist propaganda if Facebook admins don’t want that heinous-yet-legally-protected speech on the platform?
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Answer: The law doesn’t force Facebook to host content they don’t want. The law (section 230) allows Facebook to moderate the content they don’t want (e.g. white supremacist propaganda), while protecting them in cases where they miss content that they would remove if they found it.
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Except that is not what 230 says
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No, 230 says:
"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"
Which, you’ll notice, does not say anything about forcing them to host white supremacist propaganda to stay in business. Nor does it say that they get treated differently if they’re big.
Re: Re: Codifying Common Law since 1996
Actually allowing free speech, then YES, they should be protected under 230. They can’t have it both ways which is what they have been doing.
Ah, i see you have a rather basic misunderstanding of 230. (Among other things) It’s the right to moderate – not a straightjacket that bans moderation.
If you’d read the article, you’d know that it was created in response to bad court decisions that help companies liable if they moderated.
Re: Re: Codifying Common Law since 1996
1) Cite the law that says you can require other people to publish your speech at their expense.
2) Cite the law that says people must listen to you f you want them to.
Re: Re: Codifying Common Law since 1996
For all the times that somebody comes here and makes statements similar to this, I have never, not once, ever ever ever seen a single concrete example of this happening.
So please provide a concrete example of this happening on any of the social media platforms so you can prove that you are not just making shit up!
Re: Re: Re: Codifying Common Law since 1996
Huh. No answer when claims are questioned, no citations when requested. How unusual….
Re: Re: Codifying Common Law since 1996
"We don’t have free speech. If Twitter and Facebook, etc are going to Moderate the content."
So let me get this straight…unless you are free to walk into someones home and use a megaphone to shout out your views then you have no "free speech"?
Twitter and Facebook are privately-owned social forums. Their house, their rules. That’s how another constitutional amendment works – the right to own property.
You are free to open a similar social forum where only your rules abide. And that’s how "Free Speech" works.
Free speech was never about a person being allowed to usurp the property rights of the host.
“In cases where egregiously offensive or patently harmful material can be reliably identified by nonexpert moderators or basic software, and where the risk of false positives can be minimized, a notice of liability could be sent to the online distributor requiring removal of the content. ”
Anyone have an example of “egregiously offensive or patently harmful material” other than contraband?
Even something like that I’m quite certain will be used to target content someone dependent like, like the statement (manifesto?) of that idiot in New Zealand that their official idiot (censor) banned anyone from reading.
Maybe if it was “and platforms can be held liable for not removing contraband (example: kitty* porn) when told exactly where it is”
*I’m intellectually curious about tech dirts word filters, but not curious enough to test all of the permutations of this.
That reads an awful lot liked the DMCA, and look how badly that is abused as a means of censorship, along with being flooded by more notices that any large company could reasonable deal with, other than by largely automatic take down. Also, attempts by those affected to get a decision examined only adds to the flood of notices, making it even harder to deal with false takedowns.
"Anyone have an example of “egregiously offensive or patently harmful material” other than contraband? "
How about the donald tweet yesterday about how the four congresswomen of color should go back to the countries from which they came …. yes, I know three were born in the us and the forth became a citizen. Funny thing is, if AOC were to "go back" to where her ancestors came from she would still be a us citizen.
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You left out the part that if they HATE this country so much. That their own country is so much better, maybe they should move there!!! It has nothing to do with COLOR. You can be the whitest Canadian. Yo come to the U.S. and start bashing it, why the F are you here? Go back to your own country. YOU, the Leftist make it all about race. You are the true Racist as everything is White and Black to you when it couldn’t be further from the truth. You are blinded by your Trump hate from the Main Stream Media dishing out all this propaganda to you 24/7. You have a bad case of TDS.
This 4 American hating Socialists, who are really pretty DUMB like you seem to be should be booted from office.
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You’re telling four American citizens (only one of whom is a foreign-born naturalized citizen) to leave the country if they hate the current government. I bet you’re also the kind of person who would tell people from foreign countries seeking asylum to go back home and fix the governments there. How’s the view in your glass house, by the by?
Ah, yes, the “I’m rubber and you’re glue” argument. GTFO with that preschool playground horseshit.
Pointing out examples of racism (e.g., Trump referring to Mexicans as rapists and thugs, Trump trying to ban travel to and from Muslim-majority countries, Trump calling Black NFL players “sons of bitches”) does not make someone racist. A refusal to see racism — to call it out when you see it, to ask that something be done about it, to get off your ass and fight against it — is an implicit approval of both racism and racists. If you won’t “see color” or if you want to stay “color blind”, you won’t see racism. You’ll be ignoring the experiences of people of color in the United States so you can pretend the “real racists” are the people who have the courage to speak out against racism.
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You left out the part that if they HATE this country so much. That their own country is so much better,
Didn’t you support a President who ran on the slogan that America wasn’t great any more and needed improvement?
Re: Re: Re: Yeah and you only joined the klan for the ice cream socials
“It has nothing to do with COLOR.”
Why is it racists always claim not to be racists?
Re: Re: Re:2
Maybe this will help you understand.
Re: Re: Re:2 Yeah and you only joined the klan for the ice cream soci
"Why is it racists always claim not to be racists?"
Racists are getting scared of a world where open racism is no longer acceptable. They used to be open about it, but now they’re told that they can’t do that any more – that racism is evil and unacceptable. But they know they’re good people, so can’t possible be racist!
Re: Re: Re:3 Yeah and you only joined the klan for the ice cream
Oh, that one! The trouble is it’s so endemic it’s often considered to be "common sense," with no clue as to where the initial ideas come from.
I come from an imperialist, hard-right family. Think "American Dad" with an Irish accent. I’ve spent most of my life having to re-think everything I ever believed to be true. Yes, I’ve got black friends but if I say something out of turn (it’s a lot less frequent now I’ve had the necessary life experience), they call me on it. That I’ve not been called out for making statements I never considered to be racist for years doesn’t warrant a medal, more like a sigh of relief that I’m finally out of the mire.
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"You left out the part that if they HATE this country so much."
I did no such thing. The four congressional representatives did not say any such thing. That is simply bullshit from your master and lord that you repeat with reverence.
I challenge you to actually listen to the entire video where these four women of color address the outrageous racist bullshit that came outta the mouth of what we have to call president. I do not think you can do this. These voices need to be heard, whether you agree with them or not does not matter – they need to be heard and your efforts to silence them shows who you are. btw, how is that freedom of speech thing going for you guys?
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Hi, Hamilton. How’s Shiva Ayyadurai’s next anti-Warren campaign coming along?
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"You can be the whitest Canadian. Yo come to the U.S. and start bashing it, why the F are you here?"
Maybe, but where does that leave the 3 elected representatives who were born in the US, who are the subject of Trump’s ignorant attack? Is Trump just lying about them not being American, or is there perhaps some feature of them that made him falsely believe they were not Americans?
"should be booted from office."
There are regular democratic elections to enable that if the voters in their district agree that they should be removed from office. Until then, they have been chosen to represent the people who have democratically chosen them to represent their district.
Do you hate democracy?
Re: Contraband -- elephant in the room!
Suppose, for the sake of argument, that you can get general agreement on what "contraband" might be. Now, what happens when, for example, the "good guys" (National Center for Missing and Exploited Children, those hunting terrorists and computer security researchers) or, even Techdirt, start pointing to said contraband, calling it out as such, or even quote it?
Does the quote remain contraband?? We know that for defamation, it does not… no defamation saying, Ron Montoya has said "Vic Mignogna tried to rape my wife at a particular day and time", even if Mr Montoya is liable for defamation for that statement.
This is before we get to dealing with moderation at scale or agreeing just what should be contraband. Techdirt’s filters work because there’s a person checking the results from time to time, and that does not scale. If I draw a stick figure of a child having sex, (eww, gross, techdirt would ban me!) is that pornography? Contraband? Would you prefer Jeffrey Epstein looking at that stick figure or something more realistic? What about gun porn?
Your idea is lovely and seductive … and totally impossible!
Re: Re: Contraband -- elephant in the room!
Right, that’s the problem.
Though the only unlawful-in-almost-every-circumstance content I can think of already has that rule, and it doesn’t* seem to be a problem now.
Even the DMCA style abuses seem readily solvable: anyone who wants to have their claims have any force have to register their identities, and any false claims after adjudication result in some combination of presumed + actual damages.
Congress writing a law appropriately, on the other hand, has almost no chance.
*If there’s an actual issue platforms have of someone uploading kitty porn, being told about it, and then instantly being prosecuted because they had actual knowledge of it for a few minutes/hours/days until they removed it, I’ll be unhappy to learn about it.
I'm tempted to try to organize a protest
Set it up like this:
Get some non-permanent marking material, colored residue-free masking tape, perhaps, and use it to write a message on the floor outside of the Senate or House of Representatives, in the Capitol building.
Have it spell out something like "For a good time, call Jenny at 867-5309"
Under the terms of FOSTA, being physically capable of writing the message on the floor means that Congress facilitated the message, and sending a janitor to remove it means they had knowledge of its presence. And therefore Congress could be in legal trouble for their sex trafficking that is not covered by CDA 230.
No damage done, building unharmed, obviously fake message, all should equal no charges or a dismissal of charges if some are brought. A conviction for that would be absurd. But it would neatly highlight the problems with FOSTA.
A concrete example
Section 230 is the virtual world expression of the concept that: when a convenience store you are in one afternoon is robbed, and you as an innocent bystander are injured in the process, the convenience store isn’t responsible for you being hurt even though the robbery occurred in their store. To take it a step farther and complete the example, the convenience store can hire an overnight security guard without becoming liable, even though they have taken action to address the threat some of the time.
Well, I’m no lawyer, but IMO if a post office or phone company or something were to "reserve for itself broad editorial discretion" to alter or destroy their customers’ messages at will, they certainly shouldn’t be considered "merely conduits," either.
There may in certain circumstances be societal benefits to allowing intermediaries to set themselves up as editors of the messages they carry without becoming legally responsible for them. But to deny their editorship entirely is intellectually dishonest.
The phone companies are under pressure to moderate certain types of phone calls, those closely associated with scams. When they implement such technology, does that make them responsible for any scam calls that get through and trick their victims. Should email companies be held responsible for scam emails that they fail to block? Those are moderation activities, and while moderation efforts by social media are wider in nature, they want to be family friendly after all, they are doing the same thing, trying to protect the majority of their users from things they do not want to see.
"if a post office or phone company or something "
Not the same things, at all.
I would say something about comparing apples to oranges but what you have here is fruit salad.
"it requires platforms to be neutral. There’s the myth that if you moderate too much you "lose" your status as a "platform." There’s the myth that Section 230 of the CDA was "a gift" to big tech. "
i wonder what will happen to Self driving cars..
Iv said I would love it, as the person/bot/car responsible, is NOT ME. So who is?
If they wish to Fix something, let them Fix LLC.
If you dont know, LLC was setup for small business, and Liability So that you could not Sue the people, but the company only.. You could not Blame the owners for anything, and bankrupt the person..Only the company.
So when you come to the Corp ideal, they can do anything they wish, and have the Excuse of LLC.. I can do what ever and not be sue’d as an Individual responsible for my Corp.
Even 230, is made so that the responsible party Is the one you go after, for being an idiot. Shifting the Blame to the Referee is kinda stupid.
There seems to be 2 groups, 1 for everyone Bitching and arguing, and demanding Everyone listen to them, and not listening to anyone else.. And those that Require moderation of anything Bad(?) Cursing, Death threats, those looking to commit suicide? Bombings,…
If they see something MAY be happening, they are supposed to report it?? but what the person said was bad, so we have to EDIT the conversation??
The person is racist, and demanding the extinction of another race/group/other…because they cant find fault with themselves?? Freedom of speech??
All of this and more, Isnt to bad, Really, its the adverting of opinions that JUST DONT MATCH what I want to see. Even if you are open minded, I would prefer to read what I would like, NOT others rhetoric, that has no common sense of reality.. And watching Trolls trolling each other, JUST isnt good, all the time. no one listens. its a verbal fight of idiots and instigators..
Can anyone Want to watch an open NON edited discussion of who is at fault for this/that/anything you dont like, and have a person jump in to Insert Counter comments(not a logical one) just to agretate every one in the group??
And the one who is held responsible is the creator of the chat/forum/… NOT the person who opened the channel of the section/part/…?
this all seems interesting if we fight against our gov..//
Can we fight the individual?? nope,. we have to fight the gov. NOT the idiot that passed a bill/law/…
One of the main purposes of LLC is to limit the risks to the owners, that is share holders, to the amount that they invested in the company. Would you invest in a company, or be happy that your pension fund does, if a court could award damages against the share holders that meant they owed in damages far more that they invested, and were driven into bankruptcy..
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You idea is 1 off..
Corps have more then 1 type of stock, and if you look it up, Stocks can say anything and give you No rights. the only ones that would have liability are those that have a share of the company…NOT the general public.
Most shares with any responsibility tend to be only Sold inside the corp, and Those on top.. those that Can cause the problems..99% of the time.
Did you ever read the response by the Enron CEO??
"I didnt know what was going on, on floor ??"
LLC gives those on top, no responsibility for actions THEY DO..
Its as bad as the Police Union supporting officers that did Something BAD, but they still cant fire them..
If not exceptional, why does it exist?
If 230 isn’t in fragile state, why do you keep pounding on it, day after day, TWO just today?
"conduit", "tools and services" are NEUTRAL! You can’t even discuss without using terms that show intent of NEUTRALITY.
Anyhoo, I didn’t bother with this because as usual, you talk up points that aren’t actually much in contention, while leaving out your much larger and Nazi-like assertion that Section 230 EMPOWERS corporations to control all speech on what are intended to be The Public’s platforms.
Re: If not exceptional, why does it exist?
And you do not understand whet free speech means. It means that the Government will not stop you publishing at your own expense.
Re: If not exceptional, why do you exist?
Sup liar. Why do you keep running away when we ask questions?
I didn’t bother with this because as usual
Thanks for the reminder that once again you’re full of grade-A horse manure.
Please point out where 47 U.S.C. § 230 requires an interactive service to remain neutral vis-á-vis third party content.
Make your own platform. You’re not entitled to use theirs.
Re: If not exceptional, why does it exist?
Aw, blue. You didn’t even freak out about the fact that this proves you’re full of shit about "common law."
Removing section 230 is going to be HELL for anyone running for re-election as ANY complaint will result in your campaign being taken down for investigation.
i.e. NO-ONE will be able to advertise online or via TV etc.
"i.e. NO-ONE will be able to advertise online or via TV etc."
Actually, TV won’t be affected because it’s not an online platform. It just means that the platforms people can actually use to deliver a message are smaller, more expensive and less viral.
In other words – it would just transfer more power to richer incumbents and stop actual grassroots campaigns from taking hold.
I find it interesting that some are arguing for what they call the neutrality of platforms, and apparently these are the same folk who argued against net neutrality.
There is at least one similarity between attacking CDA 230 and attacking NN – that everyone doing so, without exception, either doesn’t understand what it is and does, or are deliberately lying about it (ignorant or malicious).
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Why can’t it be both?