Does Section 230 Need Fixing?

from the that-would-be-no dept

David Thompson, a lawyer who works for a company that tries to either hide or force unflattering content offline, has written up a series of blog posts for the Volokh Conspiracy site, arguing that section 230 of the CDA is flawed in large part because of Google and then goes on to propose a way to "fix" Section 230 while still preserving online anonymity. He leaves out, of course, that this would help his employer. Funny, that.

Unfortunately, I don't find his arguments convincing, and believe they make a few logical leaps and some questionable assumptions. First of all, he seems to suggest that there are a whole bunch of sites that now use section 230 to "hide" and to encourage defamatory or libelous content. While there have been a few such sites here and there, they're mostly pretty rare. And.. more importantly, in most cases, social mores can handle such sites. As people learn about the nature of such sites, they take the content found on them a lot less seriously. Second, he suggests that Section 230 provides extra protections online compared to the offline world. This is an argument that anti-Section 230 people have made time and time again, but it's been debunked. The purpose of Section 230 was never to allow the internet to flourish under some sort of special "libel subsidy" as Thompson implies, but to make sure that liability is properly assigned to the party who actually did the action, rather than a third party. Thompson's examples of it being treated "differently" in the real world mostly involve situations where the third parties had a much more active role in the activity. In the cases where that's not true, such as swap meets being liable for infringing goods sold at their sites, I'd argue that the problem is with the offline world laws -- and that they should be fixed to properly apply liability.

As for the gratuitous "blame Google" aspect, I think that Thompson and other Section 230-haters are overplaying the actual impact of finding content people don't like on Google. So many people seem to assume that if there's "bad" content found on Google about them, that it automatically destroys their reputation. There may be a few extreme cases of that being true, but in most cases, people are actually adapting and do realize that not all content they find online is trustworthy. Thompson and others seem to assume most internet surfers are stupid. I'm not sure that's an assumption that we should make.

Finally, in his "solution" post he claims that the idea that we need Section 230 to help the internet is disproved by the fact that almost no other country has Section 230-like protections, and the internet still functions there. He lists out a bunch of other countries, but doesn't seem to realize that the situation on the ground in those countries disproves his point:
But in fifteen years of experience, we've seen that CDA 230 is not required for a thriving Internet.  Europe does not have a statute equivalent to CDA 230, the U.K. has stricter libel laws than the United States, and Directive 2000/31/EC requires EU member nations to enforce libel laws online.  But some estimates suggest that Internet use is actually higher in the U.K. than the U.S.  The same goes for Japan (hosts may be liable if they have knowledge of libel, higher Internet use than the U.S.) and Canada (hosts immune only if "innocent dissemination" higher Internet use than U.S.).  Fast-growing nations like Brazil have experienced ten-fold increases in Internet use in the last decade, even without a local version of CDA 230.
Indeed. But if you look at the UK, this has created massive problems with libel tourism and ridiculous libel cases filed on a regular basis, causing serious harm. In fact, there's an effort underway in the UK to not just reform libel laws, but to get Section 230-like protections put in place, because they realize it's important to protect liability from being falsely applied. The same is true in Canada, where a bunch of recent libel cases have driven home the massive problems of not having such protections -- allowing people to use Canadian defamation law to silence critics, rather than to actually protect against libel. In Japan, the effort of making hosts liable has had some chilling effects on certain services, that have cracked down on the ability to have free and open conversations in some forums. These aren't examples to aspire to. They're examples of why those countries need Section 230-like protections. The mistaken assumption Thompson makes is that the entire purpose of Section 230 is to "help the internet survive." It's not. It's to properly apply liability.

Finally, what is his suggestion to "fix" Section 230? It's to only grant Section 230 protections to sites that do data retention on users, so that they can be tracked down if there's a libel claim. He acts as if this is a simple requirement. He's wrong. This has all sorts of problems. First, it puts a real cost on sites that want this kind of protection. Second, it takes away some freedom to comment truly anonymously by some users, which could put a serious chilling effect on certain types of important speech. Third, it opens up a serious opportunity for data breaches and data abuse. We should be encouraging the world to go in the other direction.

Thankfully, many of the comments in response to Thompson's posts make these points -- and more. The overall problem is that Thompson has set up a rationale for Section 230 that is not accurate, and a world that does not exist to justify his plan.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    The Devil's Coachman (profile), Jun 15th, 2010 @ 3:40pm

    He's a lawyer, and thus needs to be buried alive in a fire ant mound.

    But, I'm too kind. Most lawyers should be lowered from a chain hoist feet-first into a meat grinder. Very, very slowly. With their senses enhanced with stimulants, so as to make the experience so memorable. Of course, I'm not necessarily recommending that they be lowered all the way, but perhaps just to the waistline. Can you dig it? I knew that you could.

     

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    Anonymous Coward, Jun 15th, 2010 @ 4:05pm

    He leaves out, of course, that this would help his employer. Funny, that.


    While I agree his arguments are fairly bad for the most part, he mentioned his employer (whose name is fairly self-explanatory) at the end of every post, so there's not exactly a hidden conflict of interest here.

     

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    Andrew F (profile), Jun 15th, 2010 @ 4:10pm

    CDA 230 does need to be fixed

    It needs an anti-SLAPP provision.

    His argument is that CDA 230 prevents libelers from internalizing some of the costs of their act. This is true. Post CDA 230, your odds of being caught for actual libel are much lower. However, this cost-internalization problem is also true of libel plaintiffs going after the online posters that 230 indirectly protects. Most of these anonymous commenters simply don't have the resources or incentive to fight a libel action, meaning that absent 230, plaintiffs could have a powerful chilling effect on online speech, especially in areas where the libelous nature of the act is somewhat ambiguous.

    Section 230 may be a "subsidy" to potential libelers, but I'd argue it's meant to counteract the existing cost imbalance favoring plaintiffs.

     

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  4.  
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    Anonymous Coward, Jun 15th, 2010 @ 4:27pm

    So what happens if someone libels you on a website. You go to the company that owns the hardware hosting the site and say, "You're libeling me on your website, please remove it." They say, "We're just hosting the website, it belongs to someone else." You ask, "Who?" They respond, "We don't know. We don't keep logs."

    How do you get the libel removed if the hosting company doesn't know who put it there and won't remove it?

     

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  5.  
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    :Lobo Santo (profile), Jun 15th, 2010 @ 4:34pm

    Re: Coward...

    Law requires the owner of a domain to have their contact information updated and on file (with ICANN, I think).

    You'd start by contacting the owner of the website.

    (And continue it by learning to think.)

     

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  6.  
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    PUBLIUS, Jun 15th, 2010 @ 4:48pm

    230 doesn't need fixing. It would just force critical communities behind a paywall or something. Not everyone is five years old, or lives in la-la land where the sky is blue, trees produce candy, and the rivers run ripe with milk chocolate.

    The point is that communities of critics have existed since the dawn of time. Jesus Christ was a critic. Authors of the Federalist Papers were seen as critics to the Crown.

    In fact, I see it as a more positive situation because as long as 230 exists, those in charge have the ability to see the opposite view and are also able to address the criticism.

    Speech is speech, Press is press, and ideas that need to be vetted are ideas that needs to be vetted. If the desire is to engage these communities, then I imagine companies would find a way to do so. One way is to find today's technological equivalent of a party line and listen in, occasionally saying something like "I hear Fred chopping wood in the background." or mention the clicks you hear on the line.

    I'm told that the people who listen in often become your biggest fan or really, really weird.

     

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    PUBLIUS, Jun 15th, 2010 @ 4:51pm

    The web provides the equivalent of a partyline

    230 doesn't need fixing. It would just force critical communities behind a paywall or something. Not everyone is five years old, or lives in la-la land where the sky is blue, trees produce candy, and the rivers run ripe with milk chocolate.

    The point is that communities of critics have existed since the dawn of time. Jesus Christ was a critic. Authors of the Federalist Papers were seen as critics to the Crown.

    In fact, I see it as a more positive situation because as long as 230 exists, those in charge have the ability to see the opposite view and are also able to address the criticism.

    Speech is speech, Press is press, and ideas that need to be vetted are ideas that needs to be vetted. If the desire is to engage these communities, then I imagine companies would find a way to do so. One way is to find today's technological equivalent of a party line and listen in, occasionally saying something like "I hear Fred chopping wood in the background." or mention the clicks you hear on the line.

    I'm told that the people who listen in often become your biggest fan or really, really weird.

     

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    abc gum, Jun 15th, 2010 @ 4:56pm

    Is David Thompson a relative of Jack Thompson?

     

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    Anonymous Coward, Jun 15th, 2010 @ 5:05pm

    Re:

    So what happens if someone libels you on a piece of paper. You go to the company that produces the paper hosting the libel and say, "You're libeling me on your paper, please remove it." They say, "We just created the paper, it belongs to someone else now." You ask, "Who?" They respond, "We don't know. We don't keep logs."

     

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    Anonymous Coward, Jun 15th, 2010 @ 5:06pm

    Re:

    Perhaps he's a relative of TAM.

     

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  11.  
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    Mike Masnick (profile), Jun 15th, 2010 @ 5:24pm

    Re:

    So what happens if someone libels you on a website. You go to the company that owns the hardware hosting the site and say, "You're libeling me on your website, please remove it." They say, "We're just hosting the website, it belongs to someone else." You ask, "Who?" They respond, "We don't know. We don't keep logs."

    How do you get the libel removed if the hosting company doesn't know who put it there and won't remove it?


    You can file a libel lawsuit against the responsible individual, and get a court order removing the content.

     

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  12.  
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    Anonymous Coward, Jun 15th, 2010 @ 5:29pm

    Re: Re:

    Good point. That always bothered me, but you're right. As long as there's a way to get the stuff removed.

     

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    Anonymous Coward, Jun 15th, 2010 @ 5:51pm

    Re: Re:

    But there's where you nail them. They need logs (wood) to make paper.

    Busted!

     

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  14.  
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    Anonymous Coward, Jun 15th, 2010 @ 8:58pm

    Re: Re:

    "You can file a libel lawsuit against the responsible individual, and get a court order removing the content." - did you real the line above that? " They say, "We're just hosting the website, it belongs to someone else." You ask, "Who?" They respond, "We don't know. We don't keep logs."

    who are you going to sue?

     

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    Anonymous Coward, Jun 15th, 2010 @ 9:23pm

    section 230 is defective because it has been extended to cover way more than it was really intended to cover. it was originally intended to cover hosting companies. you know, racks of servers, boxes, virtual accounts, etc. the idea was to insulate the companies the provide the basic plumbing of the internet from the way the plumbing is used. the companies that provide the plumbing know who their clients are.

    then came freehosting, file hosting, and the like. now things get a little more complex, because most of these companies have no idea who their customers are, but use section 230 as sort of an excuse not to have to know.

    but then things got weird. every 'service' on the internet wants to be a service provider, from youtube to hotmail, from twitter to wordpress.com. they all want to be excluded from responsibility for the actions of their users. but they also want to be exempt from knowing who their clients are, which creates the problem of people being able to libel others with impunity, because it is often impossible to track them down. was section 230 really intended for this purpose?

     

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    Mike Masnick (profile), Jun 15th, 2010 @ 11:25pm

    Re: Re: Re:

    who are you going to sue?


    It's called filing a John Doe lawsuit. Happens all the time.

     

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  17.  
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    Mike Masnick (profile), Jun 15th, 2010 @ 11:28pm

    Re:

    section 230 is defective because it has been extended to cover way more than it was really intended to cover. it was originally intended to cover hosting companies. you know, racks of servers, boxes, virtual accounts, etc. the idea was to insulate the companies the provide the basic plumbing of the internet from the way the plumbing is used. the companies that provide the plumbing know who their clients are.

    This is not true, but if you want to believe it, more power to you.

    but then things got weird. every 'service' on the internet wants to be a service provider, from youtube to hotmail, from twitter to wordpress.com. they all want to be excluded from responsibility for the actions of their users. but they also want to be exempt from knowing who their clients are, which creates the problem of people being able to libel others with impunity, because it is often impossible to track them down. was section 230 really intended for this purpose?

    Again, this is not true. But, yes Section 230 was *absolutely* designed to protect service providers from being blamed for the actions of others. You are simply incorrect to say that this allows libel with impunity. It does not. The actual person who stated the libelous material remains liable, and plenty of plaintiffs have successfully gotten court orders against doe defendants to have the content taken down. In almost every case this works just fine. I know of only one case where a site refused to take the content down under a court order.

     

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  18.  
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    Anonymous Coward, Jun 16th, 2010 @ 3:26am

    Re: Re:

    I'm all for the "prove them wrong" approach, people say a lot of things but if others don't see it they ignore it, it is a problem when they experience those things for themselves that is what destroy reputations or if they call you a paedophile because people get their panties in a bunch with that one.

     

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  19.  
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    Anonymous Coward, Jun 16th, 2010 @ 6:13am

    Re: Re:

    "plenty of plaintiffs have successfully gotten court orders against doe defendants to have the content taken down" - that isnt enough to fix the problem. what you have stated there allows libel to happen over and over again, because the original poster faces no punishment for their actions. they can just cycle through various 'services' and anonymously report their libelous material. by not obliging these service providers to have user information, they make it impossible to gain complete redress.

    the creation of section 230 was specifically to help services like aol and prodigy that had user web sites and user lead discussions. its intent wasnt to create a shield for anonymous users, only to limit the providers liability in these circumstances. instead, the law has been manipulated by 'services' who willfully decide not to collect user data, logging, or any other information, effectively creating a legal dead end for people who have been libeled or are victims of other online crime.

    the law was written when lawmakers still felt that these services knew who all of their users were, mostly because they were paying members. they failed to oblige the services to know who their users are by law, which has created the current legal black hole.

     

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  20.  
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    Anonymous Coward, Jun 16th, 2010 @ 6:31am

    Re: Re: Re:

    TAM: Making things up 24/7.

     

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  21.  
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    Killer_Tofu (profile), Jun 16th, 2010 @ 6:52am

    Once upon a time

    Once upon a time to sue somebody you had to actually go after the person who committed the transgression. Now we have all these lawyers and their "who is the easiest target" bullshit. I long for the days when things were just and right. Eh, who am I kidding, things were probably never just and right. But they only seem to be getting worse these days.

     

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  22.  
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    Nick Coghlan (profile), Jun 16th, 2010 @ 6:57am

    Why the internet usage numbers are almost completely irrelevant

    The internet usage figures are basically irrelevant without a breakdown of what they're being used for. If users in other countries are accessing US sites which enjoy Section 230 protections (e.g. Youtube, eBay, plenty of others), then any associated internet usage can't be used as an argument that Section 230 is unnecessary.

    Similarly, any usage of government services, private communications services, games, is irrelevant because section 230 won't come into play.

    A more relevant figure to look at would be where the large *public* communications sites are hosted (or headquartered), and for the English speaking world I believe those numbers are tilted pretty heavily towards the US. A lot of that would be for reasons unrelated to the legal environment, but the Section 230 laws helping keep those services from drowning in a sea of lawsuits would still be a factor.

     

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  23.  
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    Mike Masnick (profile), Jun 16th, 2010 @ 10:29am

    Re: Re: Re:

    that isnt enough to fix the problem. what you have stated there allows libel to happen over and over again, because the original poster faces no punishment for their actions. they can just cycle through various 'services' and anonymously report their libelous material. by not obliging these service providers to have user information, they make it impossible to gain complete redress.

    If there were *any* evidence to support that this actually happens in a way that the user is unidentifiable, you might have a point. But, there isn't, and you don't.

    In the rare cases where someone goes around to various services, it's almost always clear who they are, and the filing of a Doe suit unmasks them.

    And, on the off chance that one individual cannot be identified, then so be it. Better than one guilty party gets away than to unfairly burden all service providers.

    the creation of section 230 was specifically to help services like aol and prodigy that had user web sites and user lead discussions

    Not true.

    its intent wasnt to create a shield for anonymous users, only to limit the providers liability in these circumstances. instead, the law has been manipulated by 'services' who willfully decide not to collect user data, logging, or any other information, effectively creating a legal dead end for people who have been libeled or are victims of other online crime.

    Very very few services actually do that. You are overstating the problem by a wide margin.

     

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  24.  
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    Fionnd, Jun 21st, 2010 @ 11:20am

    Re: Re:

    Mike
    you say
    You can file a libel lawsuit against the responsible individual, and get a court order removing the content.

    First you have to find the individual. So lets take a look at how this works for RipOff Report. You go to court to get a court order to obtain the contact details from Rip Off Report. You spend thousands of dollars on legal fees. When you recieve the contact details they are false as anybody who posts false slanderous defamatory remarks will conceal their true identity. So you end up in a black hole. Let's say ROR does have the real indentity you take the poster to court the court orders the content to be taken down. The ROR refuses to take it down. CDA 230 allows them to do that. So despite an order fromn a court the content stays and you end up with no resolution. Its not a s simple as you say I am afraid. Most decent sites will take the content down. Most decent sites will take it down presented with evidence that it is truly false without a court order or legal costs just the cost of an e-mail. CDA is an important part of what makes the web effective but until there is some cure for the falsely slandered and accused sites like the ROR will be one of the main places to point the finger when CDA 230 is repealed.

     

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