Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act

from the duty-calls dept

Hello! Someone has referred you to this post because you've said something quite wrong about Section 230 of the Communications Decency Act.

I apologize if it feels a bit cold and rude to respond in such an impersonal way, but I've been wasting a ton of time lately responding individually to different people saying the same wrong things over and over again, and I was starting to feel like this guy:

Duty Calls

And... I could probably use more sleep, and my blood pressure could probably use a little less time spent responding to random wrong people. And, so, for my own good you get this. Also for you own good. Because you don't want to be wrong on the internet, do you?

Also I've totally copied the idea for this from Ken "Popehat" White, who wrote Hello! You've Been Referred Here Because You're Wrong About The First Amendment a few years ago, and it's great. You should read it too. Yes, you. Because if you're wrong about 230, there's a damn good chance you're wrong about the 1st Amendment too.

While this may all feel kind of mean, it's not meant to be. Unless you're one of the people who is purposefully saying wrong things about Section 230, like Senator Ted Cruz or Rep. Nancy Pelosi (being wrong about 230 is bipartisan). For them, it's meant to be mean. For you, let's just assume you made an honest mistake -- perhaps because deliberately wrong people like Ted Cruz and Nancy Pelosi steered you wrong. So let's correct that.

Before we get into the specifics, I will suggest that you just read the law, because it seems that many people who are making these mistakes seem to have never read it. It's short, I promise you. If you're in a rush, just jump to part (c), entitled Protection for “Good Samaritan” blocking and screening of offensive material, because that's the only part of the law that actually matters. And if you're in a real rush, just read Section (c)(1), which is only 26 words, and is the part that basically every single court decision (and there have been many) has relied on.

With that done, we can discuss the various ways you might have been wrong about Section 230.

If you said "Once a company like that starts moderating content, it's no longer a platform, but a publisher"

I regret to inform you that you are wrong. I know that you've likely heard this from someone else -- perhaps even someone respected -- but it's just not true. The law says no such thing. Again, I encourage you to read it. The law does distinguish between "interactive computer services" and "information content providers," but that is not, as some imply, a fancy legalistic ways of saying "platform" or "publisher." There is no "certification" or "decision" that a website needs to make to get 230 protections. It protects all websites and all users of websites when there is content posted on the sites by someone else.

To be a bit more explicit: at no point in any court case regarding Section 230 is there a need to determine whether or not a particular website is a "platform" or a "publisher." What matters is solely the content in question. If that content is created by someone else, the website hosting it cannot be sued over it.

Really, this is the simplest, most basic understanding of Section 230: it is about placing the liability for content online on whoever created that content, and not on whoever is hosting it. If you understand that one thing, you'll understand most of the most important things about Section 230.

To reinforce this point: there is nothing any website can do to "lose" Section 230 protections. That's not how it works. There may be situations in which a court decides that those protections do not apply to a given piece of content, but it is very much fact-specific to the content in question. For example, in the lawsuit against Roommates.com for violating the Fair Housing Act, the court ruled against Roommates, but not that the site "lost" its Section 230 protections, or that it was now a "publisher." Rather, the court explicitly found that some content on Roommates.com was created by 3rd party users and thus protected by Section 230, and some content (namely pulldown menus designating racial preferences) was created by the site itself, and thus not eligible for Section 230 protections.

If you said "Because of Section 230, websites have no incentive to moderate!"

You are wrong. If you reformulated that statement to say that "Section 230 itself provides no incentives to moderate" then you'd be less wrong, but still wrong. First, though, let's dispense with the idea that thanks to Section 230, sites have no incentive to moderate. Find me a website that doesn't moderate. Go on. I'll wait. Lots of people say things like one of the "chans" or Gab or some other site like that, but all of those actually do moderate. There's a reason that all such websites do moderate, even those that strike a "free speech" pose: (1) because other laws require at least some level of moderation (e.g., copyright laws and laws against child porn), and (2) more importantly, with no moderation, a platform fills up with spam, abuse, harassment, and just all sorts of garbage that make it a very unenjoyable place to spend your internet time.

So there are many, many incentives for nearly all websites to moderate: namely to keep users happy, and (in many cases) to keep advertisers or other supporters happy. When sites are garbage, it's tough to attract a large user base, and even more difficult to attract significant advertising. So, to say that 230 means there's no incentive to moderate is wrong -- as proven by the fact that every site does some level of moderation (even the ones that claim they don't).

Now, to tackle the related argument -- that 230 by itself provides no incentive to moderate -- that is also wrong. Because courts have ruled Section (c)(1) to immunized moderation choices, and Section (c)(2) explicitly says that sites are not liable for their moderation choices, sites actually have a very strong incentive provided by 230 to moderate. Indeed, this is one key reason why Section 230 was written in the first place. It was done in response to a ruling in the Stratton Oakmont v. Prodigy lawsuit, in which Prodigy, in an effort to provide a "family friendly" environment, did some moderation of its message boards. The judge in that case rules that since Prodigy did moderate the boards, that meant it would be liable for anything it left up.

If that ruling had stood and been adopted by others, it would, by itself, be a massive disincentive to moderation. Because the court was saying that moderation itself creates liability. And smart lawyers will say that the best way to avoid that kind of liability is not to moderate at all. So Section 230 explicitly overruled that judicial decision, and eliminated liability for moderation choices.

If you said "Section 230 is a massive gift to big tech!"

Once again, I must inform you that you are very, very wrong. There is nothing in Section 230 that applies solely to big tech. Indeed, it applies to every website on the internet and every user of those websites. That means it applies to you, as well, and helps to protect your speech. It's what allows you to repeat something someone else said on Facebook and not be liable for it. It's what protects every website that has comments, or any other third-party content. It applies across the entire internet to every website and every user, and not just to big tech.

The "user" protections get less attention, but they're right there in the important 26 words. "No provider or user of an interactive computer service shall be treated as the publisher or speaker...." That's why there are cases like Barrett v. Rosenthal where someone who forwarded an email to a mailing list was held to be protected by Section 230, as a user of an interactive computer service who did not write the underlying material that was forwarded.

And it's not just big tech companies that rely on Section 230 every day. Every news organization (even those that write negative articles about Section 230) that has comments on its website is protected thanks to Section 230. This very site was sued, in part, over comments, and Section 230 helped protect us as well. Section 230 fundamentally protects free speech across the internet, and thus it is more properly called out as a gift to internet users and free speech, not to big tech.

If you said "A site that has political bias is not neutral, and thus loses its Section 230 protections"

I'm sorry, but you are very, very, very wrong. Perhaps more wrong than anyone saying any of the other things above. First off, there is no "neutrality" requirement at all in Section 230. Seriously. Read it. If anything, it says the opposite. It says that sites can moderate as they see fit and face no liability. This myth is out there and persists because some politicians keep repeating it, but it's wrong and the opposite of truth. Indeed, any requirement of neutrality would likely raise significant 1st Amendment questions, as it would be involving the law in editorial decision making.

Second, as described earlier, you can't "lose" your Section 230 protections, especially not over your moderation choices (again, the law explicitly says that you cannot face liability for moderation choices, so stop trying to make it happen). If content is produced by someone else, the site is protected from lawsuit, thanks to Section 230. If the content is produced by the site, it is not. Moderating the content is not producing content, and so the mere act of moderation, whether neutral or not, does not make you lose 230 protections. That's just not how it works.

If you said "Section 230 requires all moderation to be in "good faith" and this moderation is "biased" so you don't get 230 protections"

You are, yet again, wrong. At least this time you're using a phrase that actually is in the law. The problem is that it's in the wrong section. Section (c)(2)(a) does say that:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

However, that's just one part of the law, and as explained earlier, nearly every Section 230 case about moderation hasn't even used that part of the law, instead relying on Section (c)(1)'s separation of an interactive computer service from the content created by users. Second, the good faith clause is only in half of Section (c)(2). There's also a separate section, which has no good faith limitation, that says:

No provider or user of an interactive computer service shall be held liable on account of... any action taken to enable or make available to information content providers or others the technical means to restrict access to material....

So, again, even if (c)(2) applied, most content moderation could avoid the "good faith" question by relying on that part, (c)(2)(B), which has no good faith requirement.

However, even if you could somehow come up with a case where the specific moderation choices were somehow crafted such that (c)(1) and (c)(2)(B) did not apply, and only (c)(2)(A) were at stake, even then, the "good faith" modifier is unlikely to matter, because a court trying to determine what constitutes "good faith" in a moderation decision is making a very subjective decision regarding expression choices, which would create massive 1st Amendment issues. So, no, the "good faith" provision is of no use to you in whatever argument you're making.

If you said "Section 230 is why there's hate speech online..."

Ooof. You're either the The NY Times or very confused. Maybe both. The 1st Amendment protects hate speech in the US. Elsewhere not so much. Either way, it has little to do with Section 230.

If you said "Section 230 means these companies can never be sued!"

I regret to inform you that you are wrong. Internet companies are sued all the time. Section 230 merely protects them from a narrow set of frivolous lawsuits, in which the websites are sued either for the content created by others (in which case the actual content creators remain liable) or in cases where they're being sued for the moderation choices they make, which are mostly protected by the 1st Amendment anyway (but Section 230 helps get those frivolous lawsuits kicked out faster). The websites can and do still face lawsuits for many, many other reasons.

If you said "Section 230 is a get out of jail card for websites!"

You're wrong. Again, websites are still 100% liable for any content that they themselves create. Separately, Section 230 explicitly exempts federal criminal law -- meaning that stories that blame things like sex trafficking and opioid sales on 230 are very much missing the point as well. The Justice Department is not barred by Section 230. It says so quite clearly:

Nothing in this section shall be construed to impair the enforcement of... any other Federal criminal statute

So many of the complaints about criminal activity are not about Section 230, but about a lack of enforcement.

If you said "Section 230 is why there's piracy online"

You again may be the NY Times or someone who has not read Section 230. Section 230 explicitly exempts intellectual property law:

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

If you said "Section 230 gives websites blanket immunity!"

The courts have made it clear this is not the case at all. In fact, many courts have highlighted situations in which Section 230 does not apply, from the Roommates case, to the Accusearch case, to the Doe v. Internet Brands case, to the Oberdorf v. Amazon case, we see plenty of cases where judges have made it clear that there are limits to Section 230 protections, and the immunity conveyed by Section 230 is not as broad as people claim. At the very least, the courts seem to have little difficulty targeting what they consider to be "bad actors" with regards to the law.

If you said "Section 230 is why big internet companies are so big!"

You are, again, incorrect. As stated earlier, Section 230 is not unique to big internet companies, and indeed, it applies to the entire internet. Research shows that Section 230 actually helps incentivize competition, in part because without Section 230, the costs of running a website would be massive. Without Section 230, large websites like Google and Facebook could handle the liability, but smaller firms would likely be forced out of business, and many new competitors might never get started.

If you said "Section 230 was designed to encourage websites to be neutral common carriers"

You are exactly 100% wrong. We've already covered why it does not require neutrality above, but it was also intended as the opposite of requiring websites to be "common carriers." Specifically, as mentioned above, part of the impetus for Section 230 was to enable services to create "family friendly" spaces, in which plenty of legal speech would be blocked. A common carrier is a very specific thing that has nothing to do with websites and less than nothing to do with Section 230.

If you said "If all this stuff is actually protected by the 1st Amendment, then we can just get rid of Section 230"

You're still wrong, though perhaps not as wrong as everyone else making these bad takes. Without Section 230, and relying solely on the 1st Amendment, you still open up basically the entire internet to nuisance suits. Section 230 helps get cases dismissed early, whereas using the 1st Amendment would require lengthy and costly litigation. 230 does rely strongly on the 1st Amendment, but it provides a procedural advantage in getting vexatious, frivolous nuisance lawsuits shut down much faster than they would be otherwise.

There seems to be more and more wrong stuff being said about Section 230 nearly every day, but hopefully this covers most of the big ones. If you see someone saying something wrong about Section 230, and you don't feel like going over all of their mistakes, just point them here, and they can be educated.

Filed Under: cda 230, free speech, intermediary liability, neutrality, platform, publisher, section 230, speech, wrong, you're wrong


Reader Comments

The First Word

In re: the “family friendly” stuff, I’m posting the on-the-Congressional-record words of Republican lawmaker Chris Cox, who helped craft 47 U.S.C. § 230, so we can all see his exact intent in that regard:

We want to encourage people like Prodigy, like CompuServe, like America Online, like the new Microsoft network, to do everything possible for us, the customer, to help us control, at the portals of our computer, at the front door of our house, what comes in and what our children see.

[O]ur amendment will do two basic things: First, it will protect computer Good Samaritans, online service providers, anyone who provides a front end to the Internet, let us say, who takes steps to screen indecency and offensive material for their customers. It will protect them from taking on liability such as occurred in the Prodigy case in New York that they should not face for helping us and for helping us solve this problem. Second, it will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet, that we do not wish to have a Federal Computer Commission with an army of bureaucrats regulating the Internet because frankly the Internet has grown up to be what it is without that kind of help from the Government. In this fashion we can encourage what is right now the most energetic technological revolution that any of us has ever witnessed. We can make it better. We can make sure that it operates more quickly to solve our problem of keeping pornography away from our kids, keeping offensive material away from our kids, and I am very excited about it.

—Stephen T. Stone

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  • icon
    Vermont IP Lawyer (profile), 23 Jun 2020 @ 9:47am

    3 Cheers!

    Well said. Three Cheers for Mr. Masnick!

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  • icon
    Stephen T. Stone (profile), 23 Jun 2020 @ 9:48am

    In re: the “family friendly” stuff, I’m posting the on-the-Congressional-record words of Republican lawmaker Chris Cox, who helped craft 47 U.S.C. § 230, so we can all see his exact intent in that regard:

    We want to encourage people like Prodigy, like CompuServe, like America Online, like the new Microsoft network, to do everything possible for us, the customer, to help us control, at the portals of our computer, at the front door of our house, what comes in and what our children see.

    [O]ur amendment will do two basic things: First, it will protect computer Good Samaritans, online service providers, anyone who provides a front end to the Internet, let us say, who takes steps to screen indecency and offensive material for their customers. It will protect them from taking on liability such as occurred in the Prodigy case in New York that they should not face for helping us and for helping us solve this problem. Second, it will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet, that we do not wish to have a Federal Computer Commission with an army of bureaucrats regulating the Internet because frankly the Internet has grown up to be what it is without that kind of help from the Government. In this fashion we can encourage what is right now the most energetic technological revolution that any of us has ever witnessed. We can make it better. We can make sure that it operates more quickly to solve our problem of keeping pornography away from our kids, keeping offensive material away from our kids, and I am very excited about it.

    reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 23 Jun 2020 @ 9:58am

    Good, concise reference

    It is convenient to have essentially all the wrong assertions and their corresponding refutations in one easily accessible place!

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  • icon
    Samuel Abram (profile), 23 Jun 2020 @ 10:12am

    Suggestion for Mr. Masnick.

    Mr. Masnick, I suggest you bookmark this article and put it in the "New To TechDirt?" section where you could show people what this website is all about. It would make a great first impression!

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  • icon
    Tim R (profile), 23 Jun 2020 @ 10:17am

    That's all nice and everything, Mike, but sadly, and probably not too dissimilar to Ken's 1st Amendment post, I'm pretty sure that the segment of your target audience with any kind of influence either won't read it, or will assume that you're some kind of partisan shill and won't believe you anyway.

    Excellent primer, though.

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    • icon
      TasMot (profile), 23 Jun 2020 @ 11:49am

      Re:

      However; in any real conversation about this article, please notice that in every one of his statements, he directly references the section of the law both in the article and with a link to the actual law. NO VAGUE HAND WAVING, links to the actual law.

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    • icon
      Thad (profile), 23 Jun 2020 @ 12:25pm

      Re:

      It's not for them, it's for us. I predict it'll be a big time-saver for me.

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  • icon
    allengarvin (profile), 23 Jun 2020 @ 10:18am

    Very nice summary!

    It might be worth adding a section for when someone says "tech gets immunity that no other industry gets", which I know you've covered before. Bookstores, newspapers publishing wire service stories, radio and television for content created elsewhere--even if not a blanket grant of freedom of liability, decreased liability is quite similar to the goals of 230.

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    • icon
      That One Guy (profile), 23 Jun 2020 @ 1:21pm

      Re: Very nice summary!

      Other than those arguing dishonestly that is probably the most annoying argument, because if 230 is a 'gift' then it's one that every other industry has.

      Making clear that online platforms have the same shield against being held liable for content that others create/post using their platform/product is not a gift by any stretch of the term, it's codifying equal treatment under the law because apparently some people needed to be told that yes, the rule of liability applies online as well as offline.

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    identicon
    Anonymous Coward, 23 Jun 2020 @ 10:21am

    This is a good post. However, I noticed one mistake:

    "there is nothing any website can do to "lose" Section 230 protections"

    Actually, there is. It's what many sites are actively doing. Google, Twitter, YouTube, and Facebook are the biggest culprits.

    By silencing non-leftist voices, Big Tech is going to lose Section 230 … because by narrowly defining what their terms of service consider to be "acceptable" speech, they're ensuring someone will step in and repealing Section 230 altogether.

    If only Big Tech decided not to deplatform and moderate away non-leftist opinions, they could've saved themselves from this fate. But as usual, give left wingers an inch, they'll take 1,000 miles.

    Leftists are why we can't have nice things.

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    • icon
      Toom1275 (profile), 23 Jun 2020 @ 10:25am

      Re:

      [Projects facts not in evidence]

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 23 Jun 2020 @ 10:52am

        Re: Re:

        No,no, no. Project facts he wishes were in evidence, and there's a few politicians who are straining their wish muscles to make it so.

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        • icon
          Toom1275 (profile), 23 Jun 2020 @ 11:53am

          Re: Re: Re:

          Eroding the Constitution is what many of these politicians are actively doing. Hawley, Trump, Barr are the biggest culprits.

          By trying to silence non-extremist-Right voices, these corrupt politicians are going to lose their fight as soon as it reaches a court. By directly attacking the First Amendment like this, they're ensuring anyone with >2 brain cells won't take any of their statements on law seriously, and hopefully repeal them altogether.

          If only the fascist/Republican party decided not to be butthurt about anti-terrorist opinions, they could save themselves from this fate. But as history shows, give a Nazi an inch, and they'll take 10,000 miles.

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        identicon
        Anonymous Coward, 24 Jun 2020 @ 7:10am

        Re: Re:

        Toom, I know you're subliterate, and that you enjoy copy/pasting that phrase that you once saw someone much more intelligent than you write once. But Techdirt has numerous stories (evidence) that what I said is about to happen is … about to happen (facts). In fact, Masnick has spent a good deal of time with smelling salts in one hand and a keyboard in the other swooning about it.

        Big Tech censors reality (i.e. non-leftist worldviews), and the federal government is discussing removing Section 230 protections from Big Tech. It's what keeps Masnick and his fellow propagandists up at night (not, for instance, something as minor as, oh, I don't know, violent savages burning down cities.)

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    • icon
      Stephen T. Stone (profile), 23 Jun 2020 @ 10:32am

      This is a good post. However, I noticed one mistake:

      "there is nothing any website can do to "lose" Section 230 protections"

      Actually, there is. It's what many sites are actively doing. Google, Twitter, YouTube, and Facebook are the biggest culprits.

      By silencing non-conservative voices, Big Tech is going to lose Section 230 … because by narrowly defining what their terms of service consider to be "acceptable" speech, they're ensuring someone will step in and repealing Section 230 altogether.

      If only Big Tech decided not to deplatform and moderate away non-conservative opinions, they could've saved themselves from this fate. But as usual, give conservatives an inch, they'll take 1,000 miles.

      Conservatives are why we can't have nice things.

      (Do you see how fucking ignorant your comment sounds now?)

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      • identicon
        Anonymous Coward, 23 Jun 2020 @ 11:25am

        Re:

        (Do you see how fucking ignorant your comment sounds now?)

        Please do remember that you're on the internet, and nobody can see that you are being sarcastic. As the comment you were replying to had been squelched, I lacked the context and initially thought you were serious...

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    • identicon
      Anonymous Coward, 23 Jun 2020 @ 10:57am

      Re:

      You kinda missed the whole point of this article. Maybe give it a re-read?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jun 2020 @ 11:41am

      Re:

      This is a good post. However, I noticed one mistake:

      "there is nothing any website can do to "lose" Section 230 protections"

      Actually, there is. It's what many sites are actively doing. Google, Twitter, YouTube, and Facebook are the biggest culprits.

      As it happens, I just came across a useful article to refer you to:

      Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 23 Jun 2020 @ 2:13pm

      Re:

      "Leftists are why we can't have nice things."

      Right wing ideology was directly responsible for the GFC, which took away quite a lot of nice things including the company I worked for, so you can fuck right off with that shit.

      reply to this | link to this | view in chronology ]

    • icon
      Derek Kerton (profile), 23 Jun 2020 @ 4:14pm

      Re:

      Sir/Ma'am,

      I have read the comment you posted, and you are quite wrong.

      In lieu of a thorough rebuttal here in the comment section, I refer you instead to this comprehensive explanation of why you are wrong, backed with links to the actual case law and the text of Section 230 itself.

      Good reading!

      https://www.techdirt.com/articles/20200531/23325444617/hello-youve-been-referred-here-becau se-youre-wrong-about-section-230-communications-decency-act.shtml

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    icon
    Koby (profile), 23 Jun 2020 @ 10:22am

    Reform

    An excellent dissertation on how section 230 currently works. However, many of us who want to see section 230 reforms already know what it says, and can see how it operates. That's why we want reforms.

    Once a company starts moderating content, it OUGHT to choose between being a platform, or a publisher.

    A platform that has political bias is not neutral, and thus OUGHT to lose its Section 230 protections.

    Section 230 requires all moderation to be in "good faith" and if moderation is "biased" then you SHOULDN'T get 230 protections.

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    • identicon
      Anonymous Coward, 23 Jun 2020 @ 10:27am

      Re: Reform

      To paraphrase Mike, you're wrong.

      reply to this | link to this | view in chronology ]

    • icon
      Samuel Abram (profile), 23 Jun 2020 @ 10:29am

      Re: Reform

      Once a company starts moderating content, it OUGHT to choose between being a platform, or a publisher.

      A platform that has political bias is not neutral, and thus OUGHT to lose its Section 230 protections.

      Here's the problem with that: Who gets to choose that? Do you really want the government saying you're a) a "platform" or "publisher" in one area and whether or not you're b) "biased" or "unbiased" in another? Seems ripe for abuse and would arm would-be censors in the US Government. That's why we have a 1st amendment to protect against that shit.

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      • icon
        Koby (profile), 23 Jun 2020 @ 10:55am

        Re: Re: Reform

        Do you really want the government saying you're a) a "platform" or "publisher" in one area and whether or not you're b) "biased" or "unbiased" in another?

        No, the internet service itself would choose. They could declare things such as "We are a free speech platform. We will not censor messages based upon a political bias", or perhaps they could say "We're a bunch of hardcore Democrats. We will gladly publish those with a left wing viewpoint, and we will ban anyone who sounds like a Republican".

        Also, the government wouldn't determine whether there is bias or not. Instead, private court action would allow aggrieved parties to present their case if they believe that the internet service violated their own terms of service.

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        • icon
          Stephen T. Stone (profile), 23 Jun 2020 @ 10:59am

          private court action

          The courts are part of the government.

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          • icon
            Koby (profile), 23 Jun 2020 @ 11:11am

            Re:

            The courts are part of the government.

            And courts adjudicate contract violations and defamation cases. It's perfectly fine.

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            • icon
              Stephen T. Stone (profile), 23 Jun 2020 @ 11:14am

              Your words:

              the government wouldn't determine whether there is bias or not

              Also your words:

              courts adjudicate contract violations and defamation cases

              Would the government (i.e., the courts) determine bias or not?

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              • icon
                Koby (profile), 23 Jun 2020 @ 11:27am

                Re:

                If I say in public, "Apples are my favorite fruit", I would not want a prosecutor to file charges against me. But if I had previously signed a contract as a promoter for an orange company, then I would expect the company to file a court complaint against me if I violated my contract.

                Government prosecutors and regulators are not the same thing as a court adjudicating a private contract violation.

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                • icon
                  Toom1275 (profile), 23 Jun 2020 @ 11:37am

                  Re: Re:

                  And it's also an egregious mischaracterization to claim that a "conservative" being banned means that a platform is not open to conservatives - after all, they were perfectly able to make full use of the service until they made the choice to behave abusively.

                  Choices that the gay wedding cake couple, or black patrons in the Jim Crow South - people actually facing bias against them - didn't even get the chance to.

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                • icon
                  Stephen T. Stone (profile), 23 Jun 2020 @ 11:45am

                  Government prosecutors and regulators are not the same thing as a court adjudicating a private contract violation.

                  Your words:

                  the government wouldn't determine whether there is bias or not. Instead, private court action would allow aggrieved parties to present their case if they believe that the internet service violated their own terms of service

                  If “showing bias against a political ideology” is the argument for whether a service violated its own TOS, should the courts (i.e., the government) determine whether that bias exists — and, by extension, whether that service should be denied 230 protections on the basis of such bias?

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                • icon
                  Celyxise (profile), 25 Jun 2020 @ 8:45am

                  Re: Re:

                  Even if we were to assume this silly hypothetical "contract", this brings up yet another problem with this whole political bias on social media thing: evidence.

                  There has yet to be any actual evidence of bias against any political view. There looks to be good evidence of an anti-asshole and anti-racist bias but so far nothing for anti-conservative views.

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                  • icon
                    That One Guy (profile), 25 Jun 2020 @ 4:21pm

                    'They banned me for my views!' 'Which are?' 'Oh, you know...'

                    It would be nice if those objecting to the 'anti-conservative' bias would just come out and admit that either their idea of 'conservative' includes 'asshole and/or racist', or they're just using the conservative label to avoid admitting that that is the content they care about 'protecting', but as doing that would leave them looking all sorts of bad I rather doubt most of them will have the honesty to admit it.

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        • icon
          Toom1275 (profile), 23 Jun 2020 @ 11:18am

          Re: Re: Re: Reform

          This "Platforms are wrong if they say they're open but they moderate" lie has already been thoroughly debunked at least once before.

          That you yet repeat it eliminates any possible good-faith motive for you continuing to deliberately spam this disinformation.

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        • identicon
          Anonymous Coward, 23 Jun 2020 @ 11:30am

          Re: Re: Re: Reform

          So do Right wing nut job sites not silence, remove, and outright ban leftist ideas that are posted to their sites?

          So you are saying 'conservative only' websites that currently exist should lose all section 230 protections because they are not 'neutral' by your definition?

          Sounds fair, if google/twitter are going to lose protections than info wars and all the other right wing nut job sites should lose their protection as well, so they can be sued by any leftist who doesn't like what they have done. Sounds fair...

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        • identicon
          Anonymous Coward, 23 Jun 2020 @ 1:35pm

          Re: Re: Re: Reform

          That's just called "advertising". It doesn't and shouldn't have any legal bearing.

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        • icon
          nasch (profile), 24 Jun 2020 @ 2:58pm

          Re: Re: Re: Reform

          No, the internet service itself would choose. They could declare things such as "We are a free speech platform. We will not censor messages based upon a political bias", or perhaps they could say "We're a bunch of hardcore Democrats. We will gladly publish those with a left wing viewpoint, and we will ban anyone who sounds like a Republican".

          Why would they ever choose the former if it opened them up to increased liability?

          Instead, private court action would allow aggrieved parties to present their case if they believe that the internet service violated their own terms of service.

          Then the terms of service will say, if they do not already, "we will remove, hide, shadowban, or otherwise moderate any content at our sole discretion for any or no reason, with or without any notice." There will never be any violations of their terms of service.

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      • identicon
        Anonymous Coward, 23 Jun 2020 @ 11:26am

        Re: Re: Reform

        Well, he's ought for two there, isn't he?

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    • icon
      Stephen T. Stone (profile), 23 Jun 2020 @ 10:30am

      Once a company starts moderating content, it OUGHT to choose between being a platform, or a publisher.

      And if you had paid attention to the article, 230 doesn’t make that distinction. It has no meaning here.

      A platform that has political bias is not neutral, and thus OUGHT to lose its Section 230 protections.

      …says the guy who refuses to directly say, one way or the other, whether the law should force any interactive computer service of any size to host objectionable-yet-legal speech against the wishes of that service’s owner(s).

      Section 230 requires all moderation to be in "good faith" and if moderation is "biased" then you SHOULDN'T get 230 protections.

      Oh look, another chance for you to answer One Simple Question.

      Yes or no: If the admins of a service like Twitter deletes White supremacist propaganda from said service, should that service lose its 230 protections? And I’ll remind you that White supremacy is a sociopolitical ideology, so any moderation of such content would be “biased” against that ideology.

      (I can’t wait to see how you avoid answering that one.)

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      • icon
        That One Guy (profile), 23 Jun 2020 @ 12:49pm

        Re:

        …says the guy who refuses to directly say, one way or the other, whether the law should force any interactive computer service of any size to host objectionable-yet-legal speech against the wishes of that service’s owner(s).

        Which, ironically enough, has answered that question, and that answer is very clearly 'yes', even if they'd never be honest enough to admit it.

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    • icon
      Mike Masnick (profile), 23 Jun 2020 @ 10:30am

      Re: Reform

      It's funny that you say you know what it says, and then repeat a bunch of the myths, Koby.

      Once a company starts moderating content, it OUGHT to choose between being a platform, or a publisher.

      That literally makes no sense.

      A platform that has political bias is not neutral, and thus OUGHT to lose its Section 230 protections.

      Why "ought" it lose those protections when the whole point is that it's supposed to allow sites to moderate as they see fit? And while there remains no evidence of having political bias, what is illegal about having a political bias? Do you think Fox News should not be allowed?

      And, just the fact that people like you insist there is political bias, despite the total lack of evidence for political bias should demonstrate the problem: it's based on conjecture by ignorant people like yourself. If you can't prove it, then how do you show it in court?

      Section 230 requires all moderation to be in "good faith" and if moderation is "biased" then you SHOULDN'T get 230 protections.

      This is part of what is covered above, that you insist you understood, and yet with this statement, proves you do not. Only one part requires good faith and the crafters of the law understood and encouraged "bias" in moderation.

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      • icon
        Stephen T. Stone (profile), 23 Jun 2020 @ 10:33am

        It’s hard to make someone understand something if the attention they so desperately seek relies on them being wrong about that something.

        …I think that’s how that saying goes, anyway. 🙃

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      • icon
        Koby (profile), 23 Jun 2020 @ 10:59am

        Re: Re: Reform

        Why "ought" it lose those protections when the whole point is that it's supposed to allow sites to moderate as they see fit?

        Because corporations that engage in censorship is equally as dangerous as governments that engage in censorship.

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        • icon
          Stephen T. Stone (profile), 23 Jun 2020 @ 11:00am

          Should a service such as Twitter, which is owned by a corporation, be forced by law to host racist speech because not hosting it would be “censorship”?

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          • icon
            Uriel-238 (profile), 28 Jun 2020 @ 1:12pm

            Market Supremacy / Market Monopoly

            There is a question raised once a specific company's service becomes the accepted norm for certain kinds of interaction. I point to Wikipedia when referring to a specific historic event or scientific phenomenon or proper thing. I refer to YouTube when I want to point towards a song or film clip or other media. There are no other good substitutions for these things.

            When it comes to non-media resources like this, (say electricity or water or internet access) we shift them into a category that provides for accommodations to make sure everyone can get what they need. (More or less.) I think that's was the whole point of title-II classification of telecommunication services.

            The question is, at what point is a given data source such a significant part of society that it becomes treated like a title-ii commodity? At what point is access to a forum (both to read and to speak) relevant enough to participation in a community that it should be regulated like a type-2 commodity?

            I don't have the answer to this, nor do I really have an opinion, except to say we have a few services in which a competitor is plausible but nonexistent, and we're waiting for that competitor and a standard that makes them cross compatible (So that Twitter members can engage with BirdChirp members seamlessly, and vice versa). We have monopolies that we treat as non-monopolies as if they're in a temporarily embarrassed robust, competitive market...for years at a time.

            So there may be a point when we have to accommodate everyone in the dialog, even the assholes and racists, who may or may not be automatically directed to disclaimer pages like this that explain why they're being wrong and stupid in a society of hundreds of millions.

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            • icon
              That One Guy (profile), 28 Jun 2020 @ 2:25pm

              You can build a new online platform, ISP not so much

              If you don't like your ISP, you can't just make another one.

              If you don't like the company selling electricity, you can't really just built one of those either.

              When online platforms reach the point that you can't create and/or help fund an alternative then it might be time to consider treating them the same as physical monopoly services, but as the fact that alternatives keep popping up(even if only a small number of people actually want to use them for some strange reason) show that time is not yet now.

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        • icon
          Toom1275 (profile), 23 Jun 2020 @ 11:08am

          Re: Re: Re: Reform

          Maybe if any companies actually had the power to censor anyone, perhaps you would have had a point.

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          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 23 Jun 2020 @ 6:00pm

            Re: Re: Re: Re: Reform

            LOL...

            In case you didn't notice, tech/internet companies do whatever the fuck they want these days within the realm content moderation, and somehow I'm sure that is all gravy with you as long as they're pushing your own beliefs.

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        • identicon
          Anonymous Coward, 23 Jun 2020 @ 11:11am

          Re: Re: Re: Reform

          No its not, as a government can stop you making your speech public by use of force, while a company can only say not using our services, leaving you free to take your speech to some other platform.

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        • identicon
          Anonymous Coward, 23 Jun 2020 @ 11:13am

          Re: Re: Re: Reform

          Corporations do not control all speech venues and can't lock you up and/or kill you if you say something they don't like. I fail to see how that is as dangerous as a government that can do all those things.

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        • icon
          Mike Masnick (profile), 23 Jun 2020 @ 11:49am

          Re: Re: Re: Reform

          Because corporations that engage in censorship is equally as dangerous as governments that engage in censorship.

          So you think spam filters shouldn't be allowed as dangerous?

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          • icon
            Koby (profile), 23 Jun 2020 @ 12:07pm

            Re: Re: Re: Re: Reform

            So you think spam filters shouldn't be allowed as dangerous?

            I think we should allow spam filters, and disallow corporations from building an open speech platform while engaging in political bias.

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            • icon
              Stephen T. Stone (profile), 23 Jun 2020 @ 12:13pm

              disallow corporations from building an open speech platform while engaging in political bias

              You’re implying that the law should force Twitter to host all political speech, no matter how vile. You’re implying that Twitter’s punishment for showing a bias against racist, homophobic, transphobic, and xenophobic language (among other forms of politically charged speech) is to shut down. For what reason are you so afraid to say that out loud and be done with it?

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            • identicon
              Rocky, 23 Jun 2020 @ 1:10pm

              Re: Re: Re: Re: Re: Reform

              I've asked this of you before with no answer: Please tell us which corporation has built an "open speech platform" where anyone is welcome to say whatever they want.

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              • icon
                Uriel-238 (profile), 28 Jun 2020 @ 1:29pm

                open speech platform

                The channel sites like 4chan work largely this way, in that it's possible to post anonymously. Though there is support to link posts to the same source, there is no effort to make them easily identifiable (say by letting them have a name and avatar). The client software was meant for anonymous media sharing (pictures and video clips) and are only moderated to to stop child porn and people asking for child porn.

                They're a messy mixed bag with hate speech, racism, incitement to / declarations of intent to commit violence (lots of suicide) openly on display, often accompanied by both encouragement, criticism and trolling.

                These sites often serve as a good example of what the rest of the internet doesn't want, as they're really rather spicy, and while videos of puppy killings or cat killings are generally frowned upon, they surface often enough. Almost everyone wants limits to free speech. We just cannot agree on where, specifically, we want them. I certainly don't want to look at cat massacres even if I know they happen.

                This is why we have the whole moderation paradox.

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            • icon
              Mike Masnick (profile), 23 Jun 2020 @ 1:25pm

              Re: Re: Re: Re: Re: Reform

              I think we should allow spam filters, and disallow corporations from building an open speech platform while engaging in political bias.

              Define "political bias" without violating the 1st Amendment.

              What if I find your rantings to be spam? Is that political bias?

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            • identicon
              Anonymous Coward, 23 Jun 2020 @ 1:37pm

              Re: Re: Re: Re: Re: Reform

              Why.

              reply to this | link to this | view in chronology ]

            • icon
              JMT (profile), 23 Jun 2020 @ 2:28pm

              Re: Re: Re: Re: Re: Reform

              "...and disallow corporations from building an open speech platform while engaging in political bias."

              Well if that ever happens you be sure to let us all know so we can all be as dishonestly outraged as you.

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            • identicon
              Anonymous Coward, 23 Jun 2020 @ 10:18pm

              Re: Re: Re: Re: Re: Reform

              What if one party engaged in spam more than the other? The filter would then be politically biased against the party which engaged in spam. Or, at least, that's what the party with a tendency towards spam would claim.

              Now, change "spam" to "abusive behaviour," and we have the current state of social media.

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      • icon
        Wyrm (profile), 24 Jun 2020 @ 11:15am

        Re: Re: Reform

        I understand his post and there is a part that you ignored. I still disagree with him, but you seem to have missed the part where he said "That's why we want reforms."

        He does misunderstand the current version, but he's clear that he understands it enough to know that it doesn't do what he wants. Namely, allowing censorship against speech he doesn't like.

        Like many other conservatives, trolls and right-wing extremists, he likes the First Amendment as long as it covers him and his like-minded comrades. And he outright ignores it when it comes to speech that ranges from center to left-wing. Or even moderate right-wing. Thus he wants section 230 to match his view of the First Amendment. He wants a law that he can defend or ignore at his leisure depending on the content, not one that gets thrown in his face every time his pride or sensitivity is hurt.

        For him, it doesn't matter what the law states (even as clearly as section 230), nor what the initial intention was (despite - for some of them - pretending to be "originalists" or something of the like). He has his idea of what the law should be and what it actually is doesn't matter.

        Problem is, some politicians have the same idea, and they have the power to change the law to match this idea of an empty shell that cries of so-called "good intentions", but without any power to actually be enforced.

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    • identicon
      TFG, 23 Jun 2020 @ 10:33am

      Re: Reform

      Why should my blog that allows comments be forced to host racist speech?

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 23 Jun 2020 @ 10:35am

        For that matter, why should his? (He won’t answer, of course. He didn’t answer the last few times I posed a similar question. He’s a coward who refuses to commit to a position that he implicitly supports but knows will be unpopular if he explicitly supports it.)

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    • identicon
      Anonymous Coward, 23 Jun 2020 @ 10:43am

      Re: Reform

      A platform that has political bias is not neutral, and thus OUGHT to lose its Section 230 protections.

      Does that include party political platforms, or political campaign sites?

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 23 Jun 2020 @ 10:57am

        Re: Re: Reform

        Especially parties that include political animals (insert lame furry joke here) that aren't of a particular stripe. This is why donkey's don't like Zebras and elephants don't like hippo's. Neither want their nemeses to be allowed. That's not allowed on websites or on land or on sea or in the air or in voting booths.

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      • icon
        Koby (profile), 23 Jun 2020 @ 11:04am

        Re: Re: Reform

        Does that include party political platforms, or political campaign sites?

        I have little doubt that political sites would choose to consider themselves a publisher, not an open platform. The same as how a political convention hall is not open to any speech, and would probably kick out protesters.

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        • icon
          Stephen T. Stone (profile), 23 Jun 2020 @ 11:05am

          The same as how a political convention hall is not open to any speech, and would probably kick out protesters.

          If those places can “censor” speech based on not wanting that speech on their property, for what reason should Twitter not be extended the same courtesy?

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          • icon
            Koby (profile), 23 Jun 2020 @ 11:36am

            Re:

            If those places can “censor” speech based on not wanting that speech on their property, for what reason should Twitter not be extended the same courtesy?

            Because then there are consequences for choosing to be a publisher. For example, if they declare "Our service is for Democrats only", it would perhaps be very honest of them. But then they would lose a large portion of their user base, and break the ubiquity and monopoly that they might currently enjoy.

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            • icon
              Stephen T. Stone (profile), 23 Jun 2020 @ 11:41am

              there are consequences for choosing to be a publisher

              Section 230 does not refer to either “publishers” or “platforms”. That dichotomy has no bearing on this discussion.

              For what reason should the owners of Twitter not be allowed to decide what speech is and isn’t acceptable on their property (i.e., their service)?

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              • icon
                Koby (profile), 23 Jun 2020 @ 12:14pm

                Re:

                Section 230 does not refer to either “publishers” or “platforms”. That dichotomy has no bearing on this discussion.

                It certainly has bearing, in that section 230 reformers see this as a deficiency in current law, and desire a change. We understand that the current law does not appear to make this distinction, but we want that distinction to be made.

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                • icon
                  Stephen T. Stone (profile), 23 Jun 2020 @ 12:22pm

                  We understand that the current law does not appear to make this distinction, but we want that distinction to be made.

                  Y’all only want that distinction made so y’all can hold services like Twitter liable for any speech that its employees neither published nor created in the first place. For what reason should that ever happen?

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                • icon
                  Toom1275 (profile), 23 Jun 2020 @ 12:46pm

                  Re: Re:

                  see this as a deficiency in current law

                  Hallucinations make a bad basis for law.

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                • identicon
                  Anonymous Coward, 23 Jun 2020 @ 12:49pm

                  Re: Re:

                  Just because you want it, doesn't make you correct. As explained in this very article.

                  reply to this | link to this | view in chronology ]

                • icon
                  Leigh Beadon (profile), 24 Jun 2020 @ 8:06am

                  Re: Re:

                  We understand that the current law does not appear to make this distinction, but we want that distinction to be made.

                  lol, maybe you understand that now - after months or years of everyone who knows the law explaining to people that they are wrong when they insist that the publisher/platform distinction already exists. It finally got through most people's heads that the distinction they dreamed into existence is not real, and so you pivoted to calling yourself a "reformer" who "wants" that distinction added.

                  Notably absent, of course, was the intermediary phase where you "reformers" took a breath, acknowledged that you had critically misunderstood the law and been loudly repeating an utterly false claim, and spent some time learning and listening before demanding that the law be changed to render your false claims into reality.

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                • icon
                  Celyxise (profile), 25 Jun 2020 @ 8:55am

                  Re: Re:

                  As has been pointed out numerous times before, but you do realize that the ability for people and their businesses to control their own speech and with who to associate themselves with does not actually come from Section 230 right?

                  Please tell me what kind of reform would not violate the 1st Amendment?

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            • identicon
              Anonymous Coward, 23 Jun 2020 @ 1:39pm

              Re: Re:

              So, "conservatives" are just too stupid to choose an own platform. Got it. But there should be a law for these morons, why?

              reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 23 Jun 2020 @ 1:50pm

                Re: Re: Re:

                Oh I believe they've created a few platforms, the problem is that only a comparative handful of people wanted to actually switch to those platforms, and since having the platform is useless if there's no-one actually on it they switched to demanding that the big platforms(and their equally large audiences) give them special treatment instead.

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                • identicon
                  Anonymous Coward, 24 Jun 2020 @ 10:34am

                  Re: Re: Re: Re:

                  the problem is that only a comparative handful of people wanted to actually switch to those platforms,

                  Wanted? More like used by people who have been .thrown off of the more popular platforms.

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        • identicon
          Anonymous Coward, 23 Jun 2020 @ 11:15am

          Re: Re: Re: Reform

          Does that mean they can be sued for user generated speech that their political opponents find objectionable? Note, if such suites cannot be dismissed early and at little costs, a concerted campaign can drive them into bankruptcy, even if they win every time.

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    • identicon
      Anonymous Coward, 23 Jun 2020 @ 10:57am

      Re: Reform

      Did you read the article?
      There was a specific section about good faith... There was also a section about why moderation is why 230 was created in the first place and another one about platform and publisher.
      It's not hard to grasp, unfortunately it just does not do what you want it to.

      BTW how long would Fox last if it could not moderate comments?
      https://help.foxnews.com/hc/en-us/articles/233194608-Do-you-moderate-comments-
      If you don't believe Mike, maybe you will believe this as is is on Fox...

      No one is moderating right wing speech - unfortunately a small number of far right feel that they deserve a platform to post (and I quote from Fox) "vulgar, racist, threatening, or otherwise offensive language". If they behaved more like civll human beings maybe they would not get moderated??? That isn't bias, it is removing bigoted, hate speech and even Fox does it! (apparently)

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    • identicon
      Anonymous Coward, 23 Jun 2020 @ 11:04am

      Re:

      The problem with that (that you have apparently missed) is that you would then not be able to have any sites dedicated to one political party or ideology at all.

      Want to spin up a campaign site to organize supporters for Republicans? You can do that but if a bunch of Democrats start posting on it you can't kick them off because then you aren't "neutral". See the problem there?

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    • identicon
      Anonymous Coward, 23 Jun 2020 @ 11:26am

      Re: Reform

      reading fail... go back to the article and start over...

      reply to this | link to this | view in chronology ]

    • icon
      allengarvin (profile), 23 Jun 2020 @ 11:58am

      Re: Reform

      'Section 230 requires all moderation to be in "good faith"'

      And "in good faith" is a famously vague term, but there is a vast amount of common and case law, for centuries, on what it means in context of contract law, where the term most frequently appears--at its root, not twisting the contract wording by one party to give themselves an unfair advantage. Here, the terms of service act as a contract, and the amount of "bad faith" re-interpretation of rules that were written by teams of well-paid lawyers, that typically allow the platform the complete right to remove any content at will, is asymptotic to 0.

      "In good faith" occurs in a LOT of statutory law. A search restricted to the US code at law.cornell.edu/uscode shows just shy of 1000 hits. You're not going to be able to create some off-the-wall bullshit interpretation of the phrase and get any court to agree with you.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Jun 2020 @ 2:07pm

        Re: Re: Reform

        'Section 230 requires all moderation to be in "good faith"'

        Good faith includes what they think the majority of their users find objectionable.

        reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 23 Jun 2020 @ 10:48pm

      Re: Reform

      Section 230 requires all moderation to be in "good faith"

      Funny, but I knew you asshat would bring up a point that you just read was wrong. Keep running up against the facts, you won't get the law changed, genius.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jun 2020 @ 10:27am

    The problem is that no matter how wrong anyone is over 230, no matter how many times they are told they are wrong or the areas where they are wrong, they never listen because they already know anyway! Even worse is not just knowing they're wrong and ignoring it but continuing to push forward with their mistaken views because they've been encouraged, usually financially, as the result, if it happens, suits that person(s) but fucks everyone else up for decades!
    These sort of selfish, self-serving exercises are a disgrace! More so are the members of Congress who are usually involved without having a clue of the outcome. They then kick off when they dont get reelected, thinking that crapping on the people for a few pieces of silver, giving a few what they want, is the best option.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jun 2020 @ 12:33pm

      Re: The problem

      You know, I don't think you're right about the problem. I agree with your depiction of the (mostly rightist) behaviour, but do you want to open their minds to a more realistic interpretation of reality or just sound of about your (admittedly superior) understanding, feeling full of righteousness and truth?

      When you encounter a person whose mind is set on a particular viewpoint, simply haranguing him or her with a list of facts is a very poor way to, and very unlikely to, change their opinions to even the least degree. When is the last time that someone said something provably wrong and your stating the facts over and over changed anything? There are much more effective tactics. One particularly powerful one is to ask for an explanation of the other's misunderstanding. This is even more powerful when their understanding involves demonstrable contradictions.

      Now all that being said, can you explain to me how your final paragraph added anything useful to the current discourse?

      reply to this | link to this | view in chronology ]

      • identicon
        Rocky, 23 Jun 2020 @ 1:40pm

        Re: Re: The problem

        When it has been explained on multiple occasions to some people in polite terms how it works and what the facts are, and they still refuse to understand (and I use the word refuse intentionally here) even though they can't give a coherent answer to why they think as they do except you hear a lot "I think", "I feel", "I believe" or "It ought to be" you get kind of tired of explaining the issue because the discussion just end up going in circles.

        How do you reach a person that has emotionally decided that his or hers viewpoint are right regardless of the mountain of evidence saying otherwise? For them there is no misunderstanding, it's the other party that have "an agenda" or "it's a big tech conspiracy" or whatever explanation they can rationalize. How do you ask someone about their misunderstanding if they think they are right and they refuse to process what you are saying if it contradicts their beliefs? For them there is no contradictions, it's the other party that are wrong.

        How do you think an atheist fares if he asks a person believing in god about his or hers misunderstanding since there is no god? Because we are at that level of belief for some even though they can't produce one shred of evidence to support their beliefs.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Jun 2020 @ 1:45pm

        Re: Re: The problem

        Because actively, insistently ignorant (aka lying) people do not want their minds changed. They've already Krugered their Dunning, and Petered their principle. They are invested in their belief. They do not care.

        So to which specific person do you propose to pose this mental exercise?

        Also, what is the approved methodology for addressing a tone troll? Maybe you have that info as well.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jun 2020 @ 11:30am

    Better reasoned than a reason.com article...

    Mind if I refer this article to Stewart Baker? He seems to be trolling the internet from Volokh Conspiracy with articles like

    https://reason.com/2020/06/19/reforming-section-230-of-the-communications-decency-act/

    Much like Koby, above, Mr Baker uses the word 'ought' a fair amount. Somehow, the comments section did not have much favorable to say about the article. I wonder why?

    reply to this | link to this | view in chronology ]

  • icon
    TasMot (profile), 23 Jun 2020 @ 11:59am

    Mike, you missed one reason why we desperately need to get rid of Section 230 altogether: "IT'S A RICO ACT VIOLATION".
    Now go get rid of 230. /sarc

    reply to this | link to this | view in chronology ]

  • icon
    mvario (profile), 23 Jun 2020 @ 12:24pm

    Thanks for the Popehat link

    They (Ken White) had done the wonderful "Lawsplainer: IT'S NOT RICO, DAMMIT"
    https://www.popehat.com/2016/06/14/lawsplainer-its-not-rico-dammit/

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 23 Jun 2020 @ 1:01pm

    A very nice collection of the various 'objections' and strawmen related to 230 and how they are utterly baseless and only expose the ignorance or dishonesty of the one bringing them up.

    That'll certainly be a good time saver, thanks.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 23 Jun 2020 @ 1:15pm

    It not..

    The Censorship.
    HERE, its kinda nie that we Can open up anothers openion that has been Bounced. To see if its a valid opinion or comment or what.
    I would love to see more of this on the net...
    If for nothing more then a way to SHOW/explain the reasons.

    Iv explained to many that its HOW they express a comment, how you create a Foundation for a comment as you would a news article or paper written in school for your Composition teacher. State a comment and support it. Or give Support that leads to a Conclusion.
    BUT keep it clean. Being irrational shows your OWN bias, and not reasoning. Showing how you got from 1 point to an end, and not taking ANY other choices along the way, shows Bias.

    Then there is the thought process and Proof of concept that being TOLD and always hearing the SAME BS all your life, gives you the excuse you are looking for, without trying.
    We have made this MAN's world, and God aint here. Because we made it OURS not his. Until we do other wise.. Its our BS that we have to live/Lie(falsehood) with.

    reply to this | link to this | view in chronology ]

  • icon
    Rico R. (profile), 23 Jun 2020 @ 1:34pm

    Good post, but you missed a spot...

    What I want to know is how you would respond to someone who thinks Section 230 protections need to be stripped away from platforms (like Facebook) if they allow political ads to be run that contains misinformation. I don't think that's the case. In fact, I think that logic is very, very, VERY wrong. But my mom (who's a full-fledged Biden supporter) sides with Biden in his statements about Section 230 because she doesn't want misinformation to be run in ads placed by the Trump campaign. I've tried explaining what Section 230 actually does, and what it says and doesn't say, but she doesn't fully understand the big picture. Any ideas of what to say to target this logic directly?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 Jun 2020 @ 1:47pm

      Be careful with that sword, it swings both ways

      Beyond the blatant first amendment violation of saying 'you're not allowed to lie/allow others to lie', have you tried pointing out that it would be the government, namely the government headed by Trump at the moment, someone who declares anything that he doesn't like 'fake news', that would get to decide what counts as 'misinformation'?

      'Would you trust Trump to decide what counts as 'misinformation', and be able to threaten platforms if they host content that Trump declares as such?'

      Alternatively(though I'm not sure how much weight this would carry with her) you could point out that if carrying political ads with 'misinformation' carries such a huge risk then odds are good platforms simply won't carry them, and while I'm sure that would be a great relief to many people that would mean that both Trump and Biden ads would be stricken from the platform and likely every other platform.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 23 Jun 2020 @ 1:50pm

        both Trump and Biden ads would be stricken from the platform and likely every other platform

        …I’m not seeing a downside here.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 23 Jun 2020 @ 1:52pm

          Re:

          Oh I'm not either, and I imagine many others would be the same, I was merely pointing out that if someone for whatever reason wants both political ads and a ban on 'misinformation' they only get one of those, not both.

          reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 23 Jun 2020 @ 1:56pm

        Re: Be careful with that sword, it swings both ways

        I think you've hit the nail on the head.

        Laws are enforced by human beings, not perfect frictionless spheres. The people currently responsible for enforcing laws are Donald Trump and Bill Barr.

        The appropriate response to "Facebook shouldn't be allowed to lie" is to point out that if the government really had that power, that would mean that Donald Trump -- or one of his surrogates, likely appointed by him and confirmed by the Republican Senate -- would have the power to determine whether a statement is true or false and decide what ads Facebook is and isn't allowed to run.

        That's the line for people who don't like Trump.

        For people who do like Trump, point out that, if 54,000 people in three states had voted differently, Hillary Clinton would be the president right now, and you'd be giving that same power to her. Conspiracy theories notwithstanding, Trump isn't going to be president forever; sooner or later someone you really don't like is going to be in office, and you should think carefully about the powers you want to give that person.

        reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 23 Jun 2020 @ 1:58pm

      Re: Good post, but you missed a spot...

      If Biden's campaign interviewed her and she he expressed her factually wrong views about 230, and the campaign made an ad with that interview and placed it on Facebook, it would count by her own logic as misinformation and thus should be removed.

      Heck, any campaign ad from any party containing misinformation expressed as opinion by honest people not knowing better would have to be removed.

      reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 23 Jun 2020 @ 3:49pm

      Re: Good post, but you missed a spot...

      I can..
      its easy..

      Ask who we would contact if WE didnt like what she said..

      Her parents? Grand parents? The WHOLE family..
      Or just her?

      reply to this | link to this | view in chronology ]

  • icon
    Derek Kerton (profile), 23 Jun 2020 @ 4:32pm

    Mike, will you be adding / appending to this

    It seems you are going to find some other dumb arguments (or others will), oft repeated, that will need to be here.

    Will you append them?

    I'm only asking to be polite, because legally, you must write them up, because somebody (me) has asked you to do so here in the comments. Once you take on the publisher role, you are required to write content that people demand of you. That's just the Internets rules.

    But seriously, append or not?

    reply to this | link to this | view in chronology ]

    • icon
      Derek Kerton (profile), 23 Jun 2020 @ 4:44pm

      Re: Mike, will you be adding / appending to this

      As an example, I've seen a few references from dumb-dumbs on these very Internets that say that 230 requires platforms like Facebook, Google, and Twitter to promote

      "a true diversity of political discourse"

      and you know it's true, because those very words are in the law, Section (a)(3).

      Of course, it's in the "Findings" section of the law, which carries no legal heft at all.

      Check this out, from your friends at Prager U
      https://twitter.com/prageru/status/1266527494296961030

      reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 23 Jun 2020 @ 5:07pm

        Re: Re: Mike, will you be adding / appending to this

        And of course, they're blatantly misrepresenting the fact that 230 is what promotes a true diversity of political discourse on the internet by protecting viewpoints from censorship.

        reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 23 Jun 2020 @ 5:16pm

      Re: Mike, will you be adding / appending to this

      I've already added one such question since the story was posted, and may add others.

      reply to this | link to this | view in chronology ]

  • icon
    j.s. (profile), 23 Jun 2020 @ 6:37pm

    Double check the following statements with respect to the passing of FOSTA/SESTA and the Omnibus bill.
    FOSTA/SESTA under the guise of fighting human trafficking, gave them prosecutorial power to hold host-ers responsible for the content they host (having not found a way to do what they wanted, they created this scary little wormhole to give them a way to put pressure on hosters (a'la silk road, escort ads)

    "To be a bit more explicit: at no point in any court case regarding Section 230 is there a need to determine whether or not a particular website is a "platform" or a "publisher." What matters is solely the content in question. If that content is created by someone else, the website hosting it cannot be sued over it.

    Really, this is the simplest, most basic understanding of Section 230: it is about placing the liability for content online on whoever created that content, and not on whoever is hosting it. If you understand that one thing, you'll understand most of the most important things about Section 230. "

    While I know the context in which you are saying this, they do actually now have that power to hold them responsible if they choose to...for discriminating against conservatives, etc. they wouldn't give a crap, but the law has changed. March 2017. The day after FOSTA/SESTA passed, and BURIED deep within the omnibus spending bill was the followup to FOSTA/SESTA which gave them the ability to enact this power retroactively (basically for things posted in the past). just fyi-and, maybe I'm wrong, and I definitely looked into it in regards to a specific scope when it was getting pushed through congress....but, scary stuff imo and I think it makes your point that they can't hold hosters accountable or responsible for the content if they didn't create it....outdated as an answer. Thanks! Interesting read tho, and see lots of stuff to check out on this site.

    reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 23 Jun 2020 @ 9:26pm

    Mike -- well done, and I expect to see the link to this article posted very often down here in the comment section :)

    I do have a few suggestions:

    1) Versioning. You said in an earlier comment that you plan to update the list as needed, and that you have already done so. I suggest adding a small "updated on ..." or "added on ..." text under the "title" of each section.

    2) Anchors. Make each section title a link to itself, with "#" in-page anchors (like the "link to this" link that comments have). It would allow linking directly to the relevant section.

    3) Quote the full text of the law, or at least the part (c), directly in the text. It would fit nicely in the middle of the "Before we get into the specifics ..." paragraph. I know you linked it there, but I think it would be even better if the full context was on the same page.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 23 Jun 2020 @ 11:40pm

      Re:

      Regarding anchors: that was the original plan, but a few people pointed out that if we did it that way then people would (a) miss the title of the post, which is important and (b) miss some of the context, which is also important as some of the responses cite back to earlier answers.

      reply to this | link to this | view in chronology ]

      • identicon
        ryuugami, 24 Jun 2020 @ 4:49am

        Re: Re:

        Hmm, I see your point. I still think the positives slightly outweigh the negatives, but that may just be my laziness speaking.

        reply to this | link to this | view in chronology ]

  • identicon
    Eric Wenger, 24 Jun 2020 @ 8:06am

    100% I'm in complete agreement with your analysis. Could you also explain how the idea of "losing 230 protections" supposedly relates to the EARN-IT act? I'm a little lost when it is claimed that the law could result in the development of a best practice requiring the ability to break encryption in a private communication, which is then somehow tied to the ability to claim immunity against being held liable for the contents of communications that are published by a third party.

    reply to this | link to this | view in chronology ]

  • icon
    PNRCinema (profile), 24 Jun 2020 @ 12:20pm

    Wow...

    Brilliant piece, Mike! Now if we could just get it to every single politician in the Federal and State governments and make sure they actually READ it, maybe this nonsense would stop happening and we could concentrate on the same thing when it comes to copyright and such...yeah, right....but it's a nice dream....:-)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jun 2020 @ 2:19pm

    230(c)(2)(B)

    Your parsing of (c)(2)(B) seems...incredibly off.

    make available to information content providers or others the technical means to restrict access to material....

    This sounds like it's describing, in terms that the 1990s non-internet-users could conceive, tagging something as 18+, or PG-13, or Y7, or something, so that third parties like Net Nanny can filter content out as they so choose. I can't see how you can possibly stretch (c)(2)(B) to ever cover deleting content outright, which is the moderation decision people get the most mad about, not simply tagging.

    How could deleting a post or banning an account (and in so doing, making all their posts inaccessible to read) ever possibly be construed as making "means to restrict access" available to OTHERS to use? It's solely the act of using your own means to restrict access.

    Only "good faith" (an all too subjective term) moderation is free of liability. Which might de facto mean all moderation, yeah.

    (2) Civil liability No provider or user of an interactive computer service shall be held liable on account of—
    >(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
    >(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jun 2020 @ 6:53pm

      Re: 230(c)(2)(B)

      It actually makes perfect sense. Especially if you include the full beginning of that paragraph which you conveniently left out: "any action taken to enable or..."

      Also, since the scope of "restrict access to" is not explicitly defined, that means it basically has no limit to its scope. So yes it absolutely means "restrict access to anyone we want, up to, and including everyone in the entire world".

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Jul 2020 @ 3:20am

        Re: Re: 230(c)(2)(B)

        None of that contradicts the fact that (B) is about giving "technical means" to others. To empower others to restrict access as they wish. Performing the act of restricting access isn't providing the technical means to do so to anyone, at all.

        reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 26 Jun 2020 @ 7:15am

      Re: 230(c)(2)(B)

      Only "good faith" (an all too subjective term) moderation is free of liability.

      "You are, yet again, wrong. At least this time you're using a phrase that actually is in the law. The problem is that it's in the wrong section. Section (c)(2)(a) does say that:

      No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

      However, that's just one part of the law, and as explained earlier, nearly every Section 230 case about moderation hasn't even used that part of the law, instead relying on Section (c)(1)'s separation of an interactive computer service from the content created by users. Second, the good faith clause is only in half of Section (c)(2). There's also a separate section, which has no good faith limitation, that says:

      No provider or user of an interactive computer service shall be held liable on account of... any action taken to enable or make available to information content providers or others the technical means to restrict access to material....

      So, again, even if (c)(2) applied, most content moderation could avoid the "good faith" question by relying on that part, (c)(2)(B), which has no good faith requirement.

      However, even if you could somehow come up with a case where the specific moderation choices were somehow crafted such that (c)(1) and (c)(2)(B) did not apply, and only (c)(2)(A) were at stake, even then, the "good faith" modifier is unlikely to matter, because a court trying to determine what constitutes "good faith" in a moderation decision is making a very subjective decision regarding expression choices, which would create massive 1st Amendment issues. So, no, the "good faith" provision is of no use to you in whatever argument you're making."

      Source:

      https://www.techdirt.com/articles/20200531/23325444617/hello-youve-been-referr ed-here-because-youre-wrong-about-section-230-communications-decency-act.shtml

      reply to this | link to this | view in chronology ]


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