Senator Loeffler's New Section 230 Reform Bill Would Threaten Encryption And Pressure Websites To Keep Spam & Porn

from the sorry,-your-spam-filter-violates-the-law dept

Senator Kelly Loeffler has apparently jumped on the grandstanding bandwagon in trying to destroy Section 230 of the Communications Decency Act without understanding the first thing about how any of this works. Loeffler was already a co-sponsor of Josh Hawley's latest dumb bill to reform Section 230 and somehow decided that she had to introduce her own, even dumber, bill. It is clear that Loeffler, the wealthiest elected official in Congress (by a lot), has never spent any time with the actual working people who do content moderation. Because her bill is written by someone who doesn't understand the first thing about how all of this works.

The key to Loeffler's bill is the unconstitutional dream that some ignorant people have that websites shouldn't be able to remove any speech except speech that isn't covered by the 1st Amendment. Among the things her bill would do is change Section 230's famous Section (c)(1) (the so-called "26 words that created the internet" by saying that no website is liable for 3rd party speech) to only apply if a website is focused on moderating "unlawful" speech. Under her bill (c)(1) would go from:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

To:

(A) In General —No provider or user of an interactive computer service that takes reasonable steps to prevent or address the unlawful use of the interactive computer service or unlawful publication of information on the interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(B) DEFINITION.—For purposes of this paragraph, the term ‘unlawful use of the interactive computer service or unlawful publication of information on the interactive computer service’ includes cyberstalking, sex trafficking, trafficking in illegal products or activities, child sexual exploitation, and any other activity relating to the use of, or publication of information on, an interactive computer service that is otherwise proscribed by Federal law.

This on its own may create tremendous problems for encryption, because one might read this to say, a la the EARN IT Act, that offering end-to-end encryption means that you are not "taking reasonable steps to prevent or address the unlawful use." That's a massive problem, and very, very dangerous.

Then her bill would change (c)(2) -- the less widely used part of Section 230 that says there's no liability for moderation choices targeting "otherwise objectionable" content, would change that part massively to say that it only applies if your moderation is "viewpoint-neutral" and if the site has "a compelling reason for restricting that access or availability."

Finally, the bill would require any website that wants to get these (now greatly limited) protections to put into their user agreement or terms of service something that will "clearly explain the practices and procedures used by the provider in restricting access to or availability of any material" and that if a site restricts content that it "shall provide a clear explanation of that decision to the information content provider that created or developed the material."

In short, this is a bill that would turn Section 230 into what a bunch of ignorant people already think Section 230 is -- one that requires content moderation decisions focused mostly on just speech unprotected by the 1st Amendment, that any content moderation decisions must be done in a "viewpoint-neutral" manner, that it's possible to clearly delineate content moderation policies to the public, and that anyone who has their content moderated should be able to get a full explanation.

Again, these are ideas that sound reasonable if you've never spoken to anyone who's ever done any of this work. Let's just use Techdirt and the way our comments are moderated as an example of why this bill would be insane. As many of you know, our comments are moderated based on user voting, in which users can vote if a comment is "insightful" or "funny" (or both!). They can also vote if a comment is spam/trollish. If a comment meets a key threshold for insightful or for funny, it gets a little icon next to that comment indicating as such (that's a form of content moderation). It is not viewpoint-neutral. It's literally based on the subjective viewpoints of our users, about how they feel. "Neutral" in this context makes no sense. Are we biased against non-insightful, non-funny comments? Hell yes. And we should be.

Of course, these viewpoint decisions are protected by the 1st Amendment, and they would also be if the "bias" were on the silly "left/right" political spectrum. Congress can no more order social media sites to only moderate content in a "viewpoint-neutral" manner than it can tell Fox News or Breitbart to stop only presenting the president's delusional view of the world. They have a 1st Amendment right to do so, just as we have a 1st Amendment right to not give participation trophies to non-funny comments.

Similarly, with our comments that are voted spammish or trollish, if they reach a certain threshold, those comments get "minimized" such that users need to click through to view them. If the comments are truly spammish, then they may get removed entirely. Under Loeffler's bill, we'd then have to spend a ridiculous amount of time explaining to trolls and spammers why we removed or minimized their comments. Which seems like a massive fucking waste of time, and would just lead to dishonest trolls and spammers insisting that their disingenuous arguments were neither trolling nor spamming.

Also, since this is almost entirely determined by user voting, we wouldn't even be able to explain most of the time, since we wouldn't even be the ones making the decisions! I can't explain why our users voted someone's comments to be trollish (or funny or insightful) because I don't know. Yet, under Loeffler's bill... we'd be required to "provide a clear explanation of that decision." Would "because people voted you that way" be clear enough? Who the hell knows, but will Loeffler use some of her immense wealth to pay for the litigation costs for us and everyone else to find out?

Also, it's entirely unclear to me if a platform can actually delete spam under this bill. Is deleting spam "viewpoint-neutral"? Or is it anti-spam? There's an interpretation (and thus, almost certainly expensive litigation) to go through before we find out if sites are protected in deleting spam. Even if deleting spam is considered "viewpoint-neutral" the bill would require sites to explain to every spammer why their content is being deleted, which would be a massive waste of time and resources, such that many sites would simply choose to (a) host all the spam, or (b) stop hosting any user generated content at all, because of all the spam.

What this bill would really do is turn any platform that hosted 3rd party speech into a garbage dump of spam, abuse, porn and harassment. Because the "cost" of removing that "lawful" speech now becomes extremely high. It does seem odd that a Republican Senator would be pushing for a bill that would lead to a lot more porn on the internet in places that formerly had policies against that, but if that's what Loeffler wants... that's what she'll get.

Filed Under: 1st amendment, content moderation, encryption, free speech, kelly loeffler, section 230, viewpoint neutral


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  1. icon
    Stephen T. Stone (profile), 26 Jun 2020 @ 1:36pm

    Hey, Koby — I’m gonna preëmpt any comment you might make by asking you One Simple Question:

    Should the law force Twitter into hosting porn and spam?

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

  2. identicon
    Rocky, 26 Jun 2020 @ 1:51pm

    How about a visit to Green Midget Cafe in Bromley

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

  3. identicon
    Anonymous Coward, 26 Jun 2020 @ 1:53pm

    It is said genius has its limits, but stupidity (or willful ignorance, take you pick when it comes to politicians) has none.

    Here is another shining example of that saying.

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

  4. identicon
    Anonymous Coward, 26 Jun 2020 @ 1:54pm

    Spammers and trolls have complained long and loud about how unfair it is that nobody will listen to them. This bill is their charter, and will hand every site that allows user generated content over to them. Just how much noise will the makes when the discover they are the only ones posting on the Internet, and how will they gain the politicians attention again?

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

  5. icon
    That One Guy (profile), 26 Jun 2020 @ 2:24pm

    Just a reminder...

    When someone claims that they want to force platforms to block only 'illegal' content it's important to remember that racism, sexism, all other forms of bigotry, advocating that some categories of people are inherently 'lesser', voicing support for nazi ideals and/or that the wrong side won the War to Preserve Slavery(otherwise known as the Civil war) are all legal speech and thus would be out of bounds for removal if moderation was only allowed to block/remove illegal content.

    That is the kind of speech that those pushing 'neutrality' bills like this one are not just trying to protect but foist onto the public, whether people want it or not.

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

  6. icon
    Celyxise (profile), 26 Jun 2020 @ 2:42pm

    MAGA?

    What I don't get is why do so many people, and especially lawmakers have such a lack of knowledge about the history of Section 230. All these proposals aim to change the law to be exactly what it was written to prevent. It's like they all heard about Stratton v. Prodigy and thought it sounded great.

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

  7. icon
    Stephen T. Stone (profile), 26 Jun 2020 @ 2:46pm

    The grand irony is that Chris Cox, one of the co-authors of Section 230, is himself a Republican.

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

  8. icon
    That One Guy (profile), 26 Jun 2020 @ 3:07pm

    Re: MAGA?

    'It is difficult to get a politician to understand a subject, when their arguments/bill/PR stunt depends upon their real or feigned ignorance of it.'

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

  9. icon
    Anonymous Anonymous Coward (profile), 26 Jun 2020 @ 3:11pm

    Re: Re: MAGA?

    Agenda, you left out agenda.

    In these cases with § 230 we can guess guess at the agendas but for sure they don't have the voters in mind.

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

  10. icon
    Mike Masnick (profile), 26 Jun 2020 @ 3:34pm

    Re:

    And the bill he was trying to counteract, the eventually unconstitutional CDA, was being pushed by James Exon, a Democrat.

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

  11. identicon
    Anonymous Coward, 26 Jun 2020 @ 3:45pm

    Re: Re: MAGA?

    I mean, Congress USED to have a department where representatives could go to learn about technology and how policy interacts with it but it was defunded and ultimately shuttered by then House Speaker Newt Gingrich.

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

  12. identicon
    Anonymous Coward, 26 Jun 2020 @ 3:49pm

    It's only been three days and we have not one, not two, not three, but FIVE different bills targeting 230 all aiming to change it in ways that not only wouldn't do what they say, but just about enable the very things they claim to be against.

    sigh 230 had a good run. It's just another reason why we can't have anything nice when we have people who either don't understand or are paid not to understand what they're legislating.

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

  13. identicon
    Zero, 26 Jun 2020 @ 4:36pm

    Re:

    Nope.

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

  14. icon
    Stephen T. Stone (profile), 26 Jun 2020 @ 5:19pm

    Conservatives have tried, and will keep trying, to destroy any independent source of expertise upon which Congress might draw. Tribalists always feel threatened by independent authorities.

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

  15. identicon
    Anonymous Coward, 26 Jun 2020 @ 6:12pm

    Loeffler better put a clause in there that say the EU cannot enforce their copyright directive in the United States, or sites will in a damn if you do damn if you dont situation

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

  16. identicon
    AricTheRed, 26 Jun 2020 @ 7:10pm

    I guess it is good, or bad? That I’m a little drunk right now. Because of the shelter at werk pandemic stuff.

    Buyout aren’t most laws bad?

    Shouldn’t we ne able to say anything “ hatever” and if someone hears it and prints it, even on the inter webs, it is ok?

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

  17. icon
    Stephen T. Stone (profile), 26 Jun 2020 @ 7:37pm

    You’re legally allowed to say whatever the fuck you want. But you’re not allowed to make someone else host it.

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

  18. icon
    PaulT (profile), 26 Jun 2020 @ 11:23pm

    Re: Re:

    That's a response from an intelligent well-reasoned person, not the guy it was requested from...

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

  19. icon
    PaulT (profile), 26 Jun 2020 @ 11:25pm

    Re: MAGA?

    "What I don't get is why do so many people, and especially lawmakers have such a lack of knowledge about the history of Section 230"

    Because they're largely from the right-wing idiot echo chamber who think that 230 is the only thing that prevents their white supremacist and pro-disease friends from making millions.

    Do you honestly think that those guys have real knowledge about anything?

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

  20. icon
    PaulT (profile), 26 Jun 2020 @ 11:27pm

    Re:

    "Shouldn’t we ne able to say anything “ hatever” and if someone hears it and prints it, even on the inter webs, it is ok?"

    You can do that, you just can't force someone else to host it against their will. I still fail the see the issue here.

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

  21. icon
    That One Guy (profile), 26 Jun 2020 @ 11:37pm

    Re: Re: MAGA?

    'I don't get it, every day I leave my house and run into nothing but assholes, maybe it's me? ... nah, must be everyone around me.'

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

  22. identicon
    Anonymous Coward, 27 Jun 2020 @ 12:04pm

    Re: Re: MAGA?

    Because they're largely from the right-wing idiot echo chamber who think that 230 is the only thing that prevents their white supremacist and pro-disease friends from making millions.

    There's an unfortunately large contingent of anti-230 commentary on the Left as well, though for different, also bad reasons. The whole "Section 230 is what lets hate speech stay on the internet" - a different type of speech police, but no less damaging in the end.

    In both sides, there is a lack of understanding of the effect that the proposed modifications would have: to either shutter free and open discussion entirely, or result in removing nothing.

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

  23. icon
    ECA (profile), 27 Jun 2020 @ 12:37pm

    LMAO...

    ' "unlawful" speech.'..???????

    Um, there is NONE..not in our country.
    How does she/he/it, THINK she/he/it got her/his/its job??

    Conservative rep?? Ok..
    Then you dont mind if a MALE gets your job? and you are in the kitchen barefoot and ....
    Look up her work history and have some fun..

    Why is it that Large corsp want things NOT to change and if they do, ONLY for themselves. another rich stooge.

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

  24. icon
    NaBUru38 (profile), 27 Jun 2020 @ 1:22pm

    Requiring "viewpoint-neutral" moderation is restricting the freedom of speech.

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

  25. icon
    That One Guy (profile), 27 Jun 2020 @ 8:51pm

    'The only way to win is to not play/cripple the current law.'

    As I and I'm sure others have noted in the past if it wouldn't be so insanely damaging it would almost be worth giving them what they claim they want just to watch them find out the hard way that far from winning they just handed themselves a massive loss, as neither side would be happy with the result.

    Those that wanted more content to be removed? Congrats, that includes their stuff, if they are allowed to post at all.

    Those that wanted less content to be removed? Again, if they are allowed to post at all they would quickly find out just what the platforms they are on look like when it's a complete free-for-all.

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

  26. icon
    techflaws (profile), 27 Jun 2020 @ 9:39pm

    provide a clear explanation of that decision

    You are an idiot! Clear enough for ya?

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

  27. identicon
    Anonymous Coward, 28 Jun 2020 @ 9:33am

    Only way to get these anti-230 congresscritters to understand the requirements of moderation is to make them do it for a while. It might sink in if they were made to moderate 2 social media posts before theirs were posted. And they had to write out a justification for any moderation decisions they made. Finally, change the TOS to make them indemnify the site for any moderation decisions made.

    Yeah, I know it’s a pipe dream.

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

  28. identicon
    Anonymous Coward, 29 Jun 2020 @ 12:56am

    Re: Just a reminder...

    I'd like to see how the companies react to a legal conflict here. In the UK, for example, some of this speech is deemed hate speech and is illegal and has to be removed.

    How will this work with the US saying, no you cant take it down?

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

  29. identicon
    Anonymous Coward, 29 Jun 2020 @ 9:18am

    There m9gj5 be even worse than earn it or the encryption bill

    If Bide n gets in the might try to revive TPP.

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

  30. identicon
    Talmyr, 29 Jun 2020 @ 11:49am

    Re: Re: Just a reminder...

    Geoblocks, or the US services moving abroad.

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


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