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Mark Zuckerberg Suggests Getting Rid Of Section 230; Maybe People Should Stop Pretending It's A Gift To Facebook

from the it-ain't-that dept

Well, we can add Mark Zuckerberg to the list of folks willing to toss Section 230 liability protections out the window — contrary to the claims of many that Facebook is the leading supporter of that law. He’s now making it clear that he’s open to a big modification of the law.

Over and over and over again over the past few years, politicians (and some media folks) have kept insisting that Section 230 “was a gift” to big internet companies like Facebook. Indeed, practically every discussion of regulating “big tech” seems to revolve around eliminating parts or all of Section 230. But, as we’ve explained many times over, Section 230 is actually just about the proper application of liability to the party that actually violates the law — rather than the tools they use. And this is important, especially for smaller companies, because a big giant like a Facebook or a Google can deal with much greater legal liability. They can afford all the lawyers it takes to fight court battles. Smaller companies? Not so much.

Indeed, in a study we put out last year, we showed that Section 230 actually increases competition and leads to more investment, since it makes sure that smaller internet platforms can actually get off the ground and not be stifled.

And the reality is that Facebook, in particular, has already recognized that it can survive without Section 230 and that taking away 230 helps it against competitors. You just need to look back two years ago, when Facebook — specifically Mark Zuckerberg and Sheryl Sandberg — agreed to buck the rest of the industry and support FOSTA to recognize that the company has made a calculated bet that it can better withstand such lawsuits than competitors. And given the company’s penchant for trying to either acquire or stomp out competitors, hurting those smaller players is now a strategic choice.

And thus, it should come as little surprise that Zuckerberg is now directly telling people that the Section 230 needs to change. Over the weekend at a conference in Munich, he said (somewhat misleadingly) that there are two models of liability: one with a newspaper, in which the paper is liable for everything in publishes, and one for a telco, in which everyone recognizes it’s crazy to hold a phone company liable for harmful content said on a phone line:

“There’s a question about framework you use for this, and right now there are two frameworks that people have for existing industries. There’s like newspapers and existing media, which is the analogy that you drew. And then there’s the kind of telco type model which is, okay, the data just flows through you, but you’re not gonna hold the telco responsible if someone says something harmful on a phone line.

Of course, Section 230 is that telco model. But, then he suggests that Facebook shouldn’t have that kind of protection (though he doesn’t want to go as far as the newspaper model):

I actually think where we should be is somewhere in between.

What does that mean? Who the hell knows, which is why it’s not every useful guidance for regulators. But, at the very least, he’s making it clear that he doesn’t think Facebook needs Section 230 and is willing to be held to a different standard. Again, this isn’t surprising, given the company’s past support for FOSTA (which forced a bunch of dating sites to shut down… just in time for Facebook to open its own dating service).

And then, as if to reinforce this was not just some off-the-cuff remarks by its CEO, Facebook had its VP of content policy, Monika Bickert, who certainly knows the importance and value of Section 230, put out a blog post, more or less explaining how Facebook would like 230 to be removed. Of course, that’s not the way it’s officially stated. Instead, the post is about “a way forward on online content regulation,” which is what Facebook is calling the new white paper it’s releasing, but what’s suggested is a path to destroying 230.

The paper is set up — cleverly — as if it’s just “asking questions” about content regulation. However, some of Facebook’s answers are the kinds of answers that Facebook is in a position to handle, while others are not. Take this, for example:

Governments could also approach accountability by requiring that companies meet specific targets regarding their content moderation systems. Such an approach would hold companies accountable for the ends they have achieved rather than ensuring the validity of how they got there.

For example, regulators could say that internet platforms must publish annual data on the ?prevalence? of content that violates their policies, and that companies must make reasonable efforts to ensure that the prevalence of violating content remains below some standard threshold. If prevalence rises above this threshold, then the company might be subject to greater oversight, specific improvement plans, or?in the case of repeated systematic failures?fines.

Facebook could handle that. Techdirt could not. Nor could lots of other smaller companies.

Hopefully statements and papers like these should put to rest the idea that Section 230 is some sort of special gift to Facebook in particular. Facebook doesn’t need it. The rest of us do.

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Comments on “Mark Zuckerberg Suggests Getting Rid Of Section 230; Maybe People Should Stop Pretending It's A Gift To Facebook”

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78 Comments

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Anonymous Coward says:

Re: Re:

This is called "raising the drawbridge once across."

It is disingenuous, however, to ignore distributor liability for the separate harms inflicted by platforms/publishers who spread lies. Eliminating the single-publication rule would also help since it’s easy to remove libelous content.

Too many people rely on what they find in search engines for 230 to protect lies.

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That One Guy (profile) says:

Re: Re: Re:2 Re:

Yeah that’s… not how it works. At all. What category of content they moderate does not determine liability. The entire point of 230 is that sites can moderate as they see fit without having to worry that doing it ‘wrong’ would suddenly make them liable for it, so your idea is not just wrong it’s in direct opposition to the entire point of 230 .

(And of course there’s the ever so minor tidbit that ‘not on our platform’ does not censorship make, any more than me telling someone they aren’t allowed to use my lawn to give a speech is censorship.)

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PaulT (profile) says:

Re: Re: Re:2 Re:

"fb gets what it deserves"

So, you believe that the law, it’s limits and application, and the rights of those involved should depend purely on your personal opinion of their business? That whether someone is actually guilty of a crime is irrelevant so long as you dislike them?

I bet you’d be the first one to whine if you felt something happening to you was unjust, though…

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"fb is a schmucky, sneaky, deceiving, fucknut of a company that has been selling user’s data to third parties and who knows who else"

And yet if THEY are held responsible via intermediary liability, EVERYONE is harmed by that.
If 230 takes a dive several companies a lot more shady than FB will benefit.

People who have a genuine interest in seeing 230 gone are usually just those who see it as a threat to a business model rooted in fraud and similar shady practices.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

Not this crap again. When are you going to realize you are convincing no one with your lies.

How, exactly, is it disingenuous to not stop harms that do not exist?

How easy is it to remove content of any type?

Too many rely upon the statements of others and do not look for themselves, thus they believe bullshit.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: Re:

While true, that solution leaves a problem. The 1st Amendment allows politicians to say whatever they want during campaigns. Then when voters take them at their word, and the elected politician does a 180 on them when in office, the only way to correct that injustice is in the next election. Too late for my tastes. At the same time, I have no good resolution without doing harm to several entrenched systems.

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Nathan F (profile) says:

For example, regulators could say that internet platforms must publish annual data on the “prevalence” of content that violates their policies, and that companies must make reasonable efforts to ensure that the prevalence of violating content remains below some standard threshold. If prevalence rises above this threshold, then the company might be subject to greater oversight, specific improvement plans, or—in the case of repeated systematic failures—fines.

Is he really suggesting that if your site happens to attract more trolls and ITGs the government should step in because you have had to nuke too many of their posts? All that is going to lead to is LESS moderation because they dont want to run the risk of crossing that "prevalence" line.

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That One Guy (profile) says:

Re: Re:

No worries, I cannot think of any possible negative repercussions from a law that would encourage both less moderation and/or extremely weak rules, and give trolls a way to destroy platforms they don’t like by posting as much policy-violating content as possible.

This comment has been deemed insightful by the community.
aerinai (profile) says:

Government back-door censorship

The very idea of the government overseeing content moderation is a terrible idea. The fact that there is a ‘threshold’ that they are measured against already has problems. Firstly, what is ‘measured’? The number of posts that get flagged before someone gets outraged? The number of posts that people ‘feel’ are inappropriate? Secondly, if you gamify it (which you have…) you can easily fake the numbers by just being overzealous until you (A) hit your target, or (B) if you don’t think you are going to hit your ‘target’, then ramp up the algorithm to be more choosy.

This isn’t a solution; this is a fancy way to add overhead to small businesses and let the government get a toe hold in somewhere it doesn’t belong… in regulating speech!

This comment has been deemed insightful by the community.
Wyrm (profile) says:

Re: Government back-door censorship

In their proposals, it’s not even "back-door censorship". It’s "straight-up censorship". No sugar-coating or ambiguity. The government decides what acceptable speech is, and expects you to meet their goals, regardless of the means to get there. No "best effort", the ends is all that counts:

Such an approach would hold companies accountable for the ends they have achieved rather than ensuring the validity of how they got there.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

'I can think of only honest reasons they'd say that...'

Hopefully statements and papers like these should put to rest the idea that Section 230 is some sort of special gift to Facebook in particular.

Not likely, as the ones making that argument were either dishonest and making the argument in bad faith, or had bought into the arguments by those acting that way and were just parroting what they’d been told.

The more likely response is to point to Facebook ‘admitting that 230 isn’t working’ as evidence that even they know it’s bad, and use that as just more ‘evidence’ that the law needs to be changed or tossed, with nary a thought that Facebook is fine with that course of action because they can survive that change, while potential competitors won’t be able to.

As always when the subject comes up it’s worthwhile to point out again that 230 is not in any way a ‘gift’ unless someone considers equality a ‘gift’. 230 is merely applying the same standards of liability to online companies that offline companies get by default, because apparently people needed to have it spelled out that companies are responsible for what they do/say, not what people who use their services/platforms do/say.

You don’t get to sue Ford when someone uses one of their vehicles in a hit-and-run.

You don’t get so sue Walmart when someone buys a knife there and stabs someone with it.

You don’t get to sue a record label when someone buys a CD from them and uses the case to smuggle drugs.

You don’t get to sue a newspaper because someone bought one of their papers and scribbled defamatory content in it.

And you don’t get to sue an online platform because one of the visitors posted illegal content.

genghis_uk (profile) says:

Re: 'I can think of only honest reasons they'd say that...'

"You don’t get to sue Ford when someone uses one of their vehicles in a hit-and-run.

You don’t get so sue Walmart when someone buys a knife there and stabs someone with it.

You don’t get to sue a record label when someone buys a CD from them and uses the case to smuggle drugs.

You don’t get to sue a newspaper because someone bought one of their papers and scribbled defamatory content in it.

And you don’t get to sue an online platform because one of the visitors posted illegal content."

No, but there are many who will try!
Without them techdirt would be a very dull place.

That One Guy (profile) says:

Re: Re: 'I can think of only honest reasons they'd say that...'

Eh, I would take ‘dull’ in a heartbeat if the reason for the change was that there was a lot less stupid/aggravating things to cover.

Not a single article to be found covering a SLAPP suit because none had been filed? Deal.

No articles talking about politicians pushing terrible laws or ideas because none of them were doing so? Great trade.

No articles like this one covering a self-serving CEO arguing in favor of a terrible idea because his company could survive where his competition likely couldn’t, because nary a CEO is acting like a short-sighted sociopath? I’ll take that.

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Anonymous Coward says:

Re: Re: Re: 'I can think of only honest reasons they'd say that.

So EVERY OTHER COUNTRY is wrong on 230 immunity, and America is…exceptional?

What makes their laws inferior? That they protect individuals from reputation blackmail? That they recognize the two hundred years of precedent behind distribution of libel, a separate harm from its publication committed by a separate actor like a search engine?

I’m sure 95+ percent of the developing world will be glad to hear that its laws are inferior to ‘Merica.

Rocky says:

Re: Re: Re:2 'I can think of only honest reasons they'd say t

Every other country has their own laws, which addresses free speech, publication, defamation, libel etc in their own way.

What you fail to realize is that no other country has something like the 1st Amendment in it’s scope and breadth, that doesn’t make others countries laws wrong – just different. But I guess it fits your narrative to put up dishonest arguments.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 'I can think of only honest reasons they'd say t

"So EVERY OTHER COUNTRY is wrong on 230 immunity, and America is…exceptional?"

EVERY OTHER COUNTRY than the US has a different set of free speech laws as compared to the US.

Which means in most cases these countries do not need a section 230 since it’s either in their respective constitutions or within their various telecoms acts.

Now, Baghdad Bob, are you going to keep trying to sell your lies about WHY you want section 230 gone and just admit that you want it dumped because you don’t like the idea of your fraudulent practices being found on Google?

We’ll just keep debunking your fallacious argument no matter HOW many times you keep trying to push it.

PaulT (profile) says:

Re: Re: Re: 'I can think of only honest reasons they'd say that.

"many countries actually place the blame on the correct party"

Exactly. The reason why the US is protected so specifically in this manner is that a) people don’t resort to lawsuits as quickly or as often in other countries and b) when they do, they try to target the people actually responsible and not the nearest innocent but cash-rich target. People elsewhere don’t see lawsuits as the first port of call or a payday like Americans often do, hence the protections are different.

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Rocky says:

Re: Re: Re:2 'I can think of only honest reasons they'd say t

The USA has the 1A which is unique in it’s breadth and consequences, and the CDA section 230 is a natural progression from the 1A if you want to use the internet as a communications medium.

People who complain about 230 and make comparisons how things work in other countries have a very US-centric view. Because of that they fail to take into consideration that you can express opinions and speech in the US that’s illegal elsewhere by default, and platforms who flaunt those laws are usually taken to task by their government quite quickly so the issue of a person suing a platform for <reason> seldom comes up.

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PaulT (profile) says:

Re: Re: Re:3 'I can think of only honest reasons they'd s

"So if I repeat defamatory content, the source from which I heard it is the ONLY one inflicting harm?"

It’s a damn shame that you have to be so dishonest about the situation that you think this is an equivalent argument. Hint: if you choose to repeat the content, you will be held responsible for your action. If you have to pretend there’s no difference between you doing something and someone else doing something on your property, you will never be addressing the actual argument.

Scary Devil Monastery (profile) says:

Re: Re: 'I can think of only honest reasons they'd say that...'

"Except you DO get to sue the platform in every country other than the United States."

…when the platform has done actively wrong, otherwise not.

In most countries which aren’t autocratic dictatorships, 3rd party liability is very deliberately NOT A THING.

We have the australian example as that one glaring exception. Given australia’s recent insanities, however, that example is going to be moot since australia is not going to be online for very long with a law mandating that any written software must have a government backdoor.

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Anonymous Coward says:

Re: Re:

Unpopular opinion:

The basic premise and service offered by Facebook is actually incredibly useful and well put together. It provides an easy and convenient method for friends and family to stay in contact despite being located in geographically distant locations, or even locally. It’s also a great communication tool for disseminating useful, important, and/or interesting information.

The parts of Facebook that make it undesirable are the privacy issues, data collection, and ad targeting/proliferation.
Solve those issues and the legitimate reasons to hate Facebook go away.

Anonymous Coward says:

Re: Re: Re:

The parts of Facebook that make it undesirable are the privacy issues, data collection, and ad targeting/proliferation.
Solve those issues and the legitimate reasons to hate Facebook go away.

The privacy issues and data collection exist to drive ads. Ad targeting/proliferation drive Facebook’s revenue, without which FB would have to charge people to use it. If they charged to use it nobody would use it. Perhaps you and I don’t see a problem with that but you have to admit that the problem isn’t as simple as you state it.

Anonymous Coward says:

Re: Re: Re: Re:

Serious transparency about what data is collected and how, who it is shared with (including government departments), exactly what is done with it, and exactly who is purchasing which specific ads and how they are targeted, would help.

Part of the problem is that spies and LE have pumped a fortune into working with data collected by Facebook and the others and don’t want to stop. Certain politicians with authoritarian tendencies also like the power and control that comes with the sort of fine grain mass surveillance made possible by this outsourced "constitutional" data collection.

Another problem is that the political establishment has pumped a fortune into using data collected by Facebook and the others to run (game) elections and otherwise influence (game) public policy, and they don’t want to stop.

The problem is bigger than just the companies.

Regulations requiring transparency, and restricting inappropriate data use (including a global ban on all targeted ads), with serious consequences for non-compliance, credibly enforced, would help. But again, the problem is corrupt governments not wanting this.

Anonymous Coward says:

Re: Re: Re: Re:

You don’t need data collection to put ads in front of people. One is not dependent on the other. Data collection helps make sure you are putting ads in front of people that they may be more likely to click on and without that Facebook may not make "as much" money as they do now, but they would still make a boatload of money. More than enough to do what they do today.

I’m even fine with data collection and ad targeting if it adheres to the following rules:

  1. It’s opt-in only. If people want to enable it so they see relevant ads that are more pleasing to their eyes, great, let them do that. But don’t make it the default.
  2. Be up front about exactly what you collect, how you share it, and who you share it with. No lies.
  3. Make sure that data is properly secured and encrypted and not open for all the world to scrape or easily pilfer.

I use an ad blocker so this is kind of moot for me but if those three rules were in place and properly executed, I’d probably be willing to opt-in to support a free service now and then. Not that I would end up clicking on any of the ads but, you know.

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Anonymous Anonymous Coward (profile) says:

They can't get their tongues around it

Given the purpose of Section 230 is to remove third party liability, I am still waiting for someone to clearly elucidate just how Section 230 isn’t working. I know that some think it should be easier to go after deep pockets for things they don’t like, and that others wish to silence voices they don’t like (and haven’t figured out all the failures of the DMCA process). There are ways to deal with illegal content (those few things that actually are illegal) and there are defamation laws to deal with actual slander.

So, outside of the bloviating of those who wish more control over others, and lack the impulse control to not view videos of things they find abhorrent, just what is the problem with Section 230?

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That One Guy (profile) says:

Re: They can't get their tongues around it

Two possibilities come to mind, neither of them good.

In one, you’ve got people who have been tricked and/or are so delusional as to think that 230 ‘allows’ terrible things to be posted, and are just sure that if only 230 was removed then all the terrible stuff will go away.

And on the other end you’ve got people who are angry because they think 230 ‘allows’ companies/platforms to kick them off said platforms for reasons which are just totally unfair like being a racist loser, acting terrible or advocating abhorrent ideas, and who believe that if 230 is removed platforms will be forced to host their content.

The kicker being that while one side objects to the law because they think it encourages ‘bad stuff’ the other objects to it because it encourages the removal of ‘bad stuff’, and that if it actually was removed it’s all but guaranteed that neither side would be happy with the result.

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Anonymous Anonymous Coward (profile) says:

Re: Re: They can't get their tongues around it

I hear ya, but neither of those two things are true, as you point out. If someone reasonable was to put forward an argument that actually pointed out how Section 230 wasn’t achieving the intended goal of the Section 230 creators, third party liability, then those, as well as the arguments I mentioned would not be a part of the discussion.

We have yet to see someone not delusional, without some agenda (apparent, or underhanded, or the beginning of a slippery slope), without using a smorgasbord of logical fallacies, explain just why Section 230 is wrong.

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Anonymous Coward says:

Re: Re: Re: They can't get their tongues around it

That’s because there is no sane or rational problem with Section 230.

About the only sane (but very weak) argument you could make against Section 230 is that to some people it has failed in encouraging platforms to moderate content – The point of s230 was to allow sites to moderate content posted to their sites how they felt without the worry of being sued if they missed something.

However the freedom to moderate how you want means the sites get to choose what stays up and what goes down, which as the above poster alluded to is where the problems have come from as one side feels sites aren’t removing content they dislike and are unhappy that s230 gives sites the freedom to leave this content up whilst at the same time the other side feel that sites are over moderating content they like and are unhappy that s230 gives sites the freedom to take this content down.

Of course removing s230 won’t solve either of these sides complaints it will just make things worse as without s230 sites would only have two options – either remove all UGC or do no moderating and leave everything up.

You also have a third side lead by the legacy media companies that is happy to encourage these mistaken attacks on s230 as they just want the internet to crash and burn as they are unhappy that the internet has caused them to lose control and want to turn back time to when they controlled what information people had access to.

That One Guy (profile) says:

Re: 'Oh, uh... yeah... we'll get right on that...'

I imagine it would be rather like the various attempts to force Google to pay a snippet tax: The very people complaining about how terrible something is(showing snippets and 230) would suddenly find a slew of others things to focus on and cry about when faced with the chance to do without said ‘terrible’ thing.

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Wyrm (profile) says:

Governments could also approach accountability by requiring that companies meet specific targets regarding their content moderation systems. Such an approach would hold companies accountable for the ends they have achieved rather than ensuring the validity of how they got there.

Great approach to free speech: let the government establish standards of what good speech is. (sarcasm inside, in case you miss it.)

For example, regulators could say that internet platforms must publish annual data on the “prevalence” of content that violates their policies, and that companies must make reasonable efforts to ensure that the prevalence of violating content remains below some standard threshold. If prevalence rises above this threshold, then the company might be subject to greater oversight, specific improvement plans, or—in the case of repeated systematic failures—fines.

Next, you assume it’s easy to assign value to the speech, even according to some arbitrary government-mandated standard.

The government deciding what speech is acceptable and gets legal leverage against platforms that don’t meet the standard. Read this again and you realize that Facebook is here advocating for actual government censorship. The most direct violation of the First Amendment you can conceive. How can they be that direct and still have credibility?

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