I See This Stupid New Section 230 Bill, And I Say It's A Stupid Section 230 Bill

Legal Issues

from the file-that dept

Another day, another truly terrible bill to “reform” Section 230. This is another “bipartisan” bill, which should be a reminder that bad Section 230 ideas are happening across the entire spectrum of political ideologies in Congress. It’s being released by Senator Joe Manchin along with Senator John Cornyn, and it’s obnoxiously called the See Something Say Something Online Act. I do wonder if they licensed that term, because it was the NYC Metropolitan Transit Association who holds the trademark for “see something, say something” and is notoriously litigious about it. Indeed, the DHS program under the same name “licensed” the name from the MTA, though I still fail to see how either has anything to do with “commerce.”

As a side note, before we get into why this bill is so, so bad, let’s just note that the whole “See Something, Say Something” concept has been thoroughly and comprehensively debunked as a reasonable approach to law enforcement or stopping crime. Indeed, all “See Something, Say Something” has been shown to accomplish so far is to stuff massive databases full of useless information of people spying on each other.

Now, to this actual bill. It’s worse than ridiculous. It’s yet another one of these bills that seems to think that it can blame any and all societal ills on Section 230. In this case, it’s trying to blame the internet and Section 230 for any kind of criminal behavior with a focus on illegal opioid sales. I know that this is an issue that Manchin has been vocal about for years (and for good reason, West Virginia appears to regularly have the highest overdose rates of any state in the country). But blaming the internet, or Section 230, for that is ridiculous and will not help stop the problem.

And yet, Manchin seems to think he can magically deal with the opioid problem by creating a massive regulatory burden for the internet in a very dangerous manner. The basics are that it would require any website that “detects a suspicious transmission” to submit a “suspicious transmission activity report” or “STAR.” What is a “suspicious transmission” you ask?

The term “suspicious transmission” means any public or private post, message, comment, tag, transaction, or any other user-generated content or transmission that commits, facilitates, incites, promotes, or otherwise assists the commission of a major crime.

So… that’s preposterously broad. If some comment spammer shows up in the Techdirt comments and posts some nonsense “promoting” drugs, I would have to file an official report with the DOJ? This would be an incredible burden for nearly any website.

And how would it be judged if that suspicious activity was “known” by the platform? Again, we get a very, very, very broad definition:

The term “known suspicious transmission” is any suspicious transmission that an interactive computer service should have reasonably known to have occurred or have been notified of by a director, officer, employ, agent, interactive computer service user, or State or Federal law enforcement agency.

So… if they claim that a website should have known, that’s enough that the website has to file one of these crazy reports. Or if basically anyone merely claims something on a website is loosely related to a crime, the website is then required to file one of these STAR reports. Do the staffers who wrote this bill have no clue how many false reports are made every damn day?

And it’s not just the websites. The bill would open up this STAR process directly to anyone. This is where it takes the problematic “See Something, Say Something” concept to ridiculous new heights:

The agency designated or established under [this law] shall establish a centralized online resource, which may be used by individual members of the public to report suspicious activity related to major crimes for investigation by the appropriate law enforcement or regulatory agency.

In other words, the government would set up a snitch database that will undoubtedly be filled with useless junk or people claiming that they saw some “illegal” garbage online that is unlikely to actually be illegal. Just the fact that this encourages people to snitch on others to the DOJ seems problematic enough.

The bill also appears to have a built in gag order, preventing any website from disclosing information about the STARs they’ve filed with the government. That’s a huge blow to transparency. In fact, the bill also says that all of these reports are exempt from any FOIA request.

Of course, all of that is the “new” stuff. The change to 230 is that it would be amended to say that if any website fails to submit he required STARs, then they lose Section 230 protections and may be held liable for the underlying “suspicious transmission.”

There are many, many, many problems with this whole bill. It would be massively burdensome to every website that hosts any form of user generated content. I don’t think we (or any blog, honestly) could reasonably continue to host comments with this law on the books. We’d have to police all of our comments closely, and with the structure of the bill giving no leeway, we’d be compelled to file these snitch reports to the DOJ on any possibly “suspicious” comments, with suspicious being defined so broadly that merely talking about some sort of crime would necessitate us filing. That’s an impossible standard.

Of course, this wouldn’t do anything useful. It wouldn’t help law enforcement discover crime rings online, because this STAR database would certainly be overwhelmed with garbage, just like every other “See Something, Say Something” database. Also, the fact that it requires websites to report on private information means it will require websites to snoop on private messages, and turn them over to law enforcement. That raises some fairly significant 4th Amendment concerns, by turning private companies into arms of law enforcement.

So, it wouldn’t fix anything, would create a massive snoop database for law enforcement, would encourage people to snitch on anything “suspicious” and to force websites to file these useless reports — while also likely shutting down many user forums online (especially those centered around helping those with drug addiction problems). In other words, it’s yet another garbage Section 230 reform bill.

Someone please make these stop.

Filed Under: intermediary liability, joe manchin, john cornyn, opioids, say something, section 230, see something, see something say something, suspicious activity