from the yikes dept
There was a time when a key part of the Republicans’ political platform was for “tort reform” and reducing the ability of civil lawsuits to be brought against companies. The argument they made (and to which they still give lip service) is that too much liability leads to a barrage of frivolous nuisance litigation, which only benefits greedy trial lawyers. Apparently, that concept has been tossed out the window — as with so many Republican principles — if you mention “big tech.” The latest example of this is a new Section 230 reform bill introduced by Representative Jim Banks called the “Stop Shielding Culpable Platforms Act” which would massively increase liability on any company that hosts user content online.
Banks trumpeted his own confusion on this issue earlier in the week by tweeting — falsely — that “Section 230 knowingly lets Big Tech distribute child pornography without fear of legal repercussions.” This is wrong. Child sexual abuse material (CSAM) is very, very, very much illegal and any website hosting it faces serious liability issues. Section 230 does not cover federal criminal law, and CSAM violates federal criminal law. Furthermore, federal law requires every website to report the discovery of CSAM to the CyberTipline run by NCMEC.
The law is pretty clear here and you’d think that a sitting member of Congress could, perhaps, have had someone look it up?
(a)Duty To Report.?
(A)Duty.?In order to reduce the proliferation of online child sexual exploitation and to prevent the online sexual exploitation of children, a provider?
(i)shall, as soon as reasonably possible after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(A), take the actions described in subparagraph (B); and
(ii)may, after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(B), take the actions described in subparagraph (B).
(B)Actions described.?The actions described in this subparagraph are?
(i)providing to the CyberTipline of NCMEC, or any successor to the CyberTipline operated by NCMEC, the mailing address, telephone number, facsimile number, electronic mailing address of, and individual point of contact for, such provider; and
(ii)making a report of such facts or circumstances to the CyberTipline, or any successor to the CyberTipline operated by NCMEC.
And yet, Banks seems to ignore all of this. And that leads to this new law. To be fair, the law itself is not as insane and disconnected from reality as so many other Section 230 bills, but it’s still ridiculous. It’s all built on the false argument that websites are free to knowingly host this kind of content. In fact, the bill is mostly performative. The vast majority of the bill is actually Banks misrepresenting news stories to make it sound — falsely — like websites are free to knowingly host CSAM.
The actual change to 230 is much shorter — but the impact would basically flip Section 230’s role on its head, and would lead to two things I thought Republicans were against: widespread suppression of speech online and a massive influx of frivolous and vexatious litigation. Here’s the change. It would add in this paragraph to Section 230:
??(B) NO EFFECT ON TREATMENT AS DISTRIBUTOR.?Nothing in subparagraph (A) shall
be construed to prevent a provider or user of an interactive computer service from being treated
as the distributor of information provided by another information content provider.??.
To understand all this, it helps to understand the different kinds of liability that existed pre-Section 230. This history is well documented in Jeff Kosseff’s excellent book on the history of Section 230. The key case here was Smith v. California, which involved a book store that was found to have violated a city ordinance against obscenity for having a book on its shelves that was deemed obscene (that book which is currently listed on Amazon, though out of stock, was apparently fairly tame by modern standards, but did involve some scenes where — gasp — sex happens).
Either way, the Supreme Court ruled in the Smith case that while obscene books are not constitutionally protected, you can’t hold the bookseller liable if they did not have knowledge of the contents of the book and how it was obscene. And thus, the Supreme Court established a somewhat messy “distributor liability” standard, in which you could be liable for books you distributed… but there had to be some knowledge by the distributor of the illegality of the material. The court — somewhat explicitly — refused to discuss what “mental element is requisite” to prove knowledge. This distributor liability was considered different from “publisher liability,” because the assumption was that if you’re the actual publisher, then you obviously have knowledge of the material in question.
This resulted in a lot of confusion in the ensuing years — and pre-Section 230 — there was a lot of concern about how that would play out on the early internet (or even with other distributors). Eventually, with the ruling in the Stratton Oakmont v. Prodigy case, a judge leapt right past distributor liability, and said that Prodigy actually had publisher liability for defamatory material, simply because it did some moderation.
Section 230 was written, explicitly, to overrule the decision in the Prodigy case. However, since the Prodigy case focused on actual publisher liability, and didn’t even get into the weeds of distributor liability, there was some early confusion as to whether or not Section 230 actually protected against distributor liability as well. Indeed, some observers of internet law were initially unimpressed by Section 230, suggesting that it might be useful, but not until courts really had weighed in on the “jumbled mess” of secondary liability frameworks and how 230 impacted them. That changed after the first big case involving Section 230, Zeran v. AOL, which read 230 broadly to say that it prohibited all such civil liability — including distributor liability.
Since then, Section 230’s authors — Chris Cox and Ron Wyden — have repeatedly said that the court in Zeran got it exactly right. They have noted, correctly, that any other interpretation of 230 would make it close to useless, because it would lead to a bunch of frivolous lawsuits involving wasteful fighting over discovery to prove “knowledge.”
But, apparently, that’s what Jim Banks and the Republican Study Committee he leads want. A lot more liability and costly legal fights over discovery to prove knowledge and create liability for distributors. I mean, it’s so ridiculous that it might even lead trial lawyers — a group that has historically backed Democrats — to start stumping for Republicans since this will open up the field to tons of costly litigation. And, of course, adding back in distributor liability won’t magically fix the issues that Banks claims he’s trying to fix because — as already noted — allowing CSAM on any website is already very, very much illegal, and a huge liability. So none of that changes.
The only actual change created by this bill is that it… will enable lawsuits against tons of websites. And, in order to avoid some of that costly litigating, many websites will also enable the heckler’s veto. All anyone will ever have to do to remove content they dislike from the internet is send a notice claiming the content violates some law (defamation being the easiest, but there are others as well). Then, they’ll be able to claim “knowledge” if the website refuses to remove it. That means that most websites will be quick to remove any content that someone claims is defamatory, no matter how ridiculous.
We already know how this works out because it’s kind of the way the DMCA works today — except that at least with the DMCA there are some built in counternotice provisions. But already the DMCA is abused to try to hide information. And Banks’ change, should it become law, would make that much more widely available. At least under the DMCA, sites can more easily see that, say a negative review, is obviously not copyright infringing. Whether or not it’s defamatory is not something a website can easily judge — and therefore it’s much more likely to just pull down the content.
This bill wouldn’t just change Section 230, it would flip the entire logic of 230 on its head. Rather than giving websites the flexibility and personal responsibility to moderate in a manner to fit their own community, it would cause nearly every website to start pulling down content at the first whiff of controversy. Rather than enabling free speech online, it would stifle it. Indeed, one might argue that under this law, Twitter would be forced to pull down Banks’ tweet about this law. After all it could be argued that it defames Twitter itself in falsely claiming the company knowingly hosts CSAM. Under Banks’ law, Twitter would become liable for those false claims… about Twitter.
It’s a weird flex for a Republican to push for greater suppression of speech and more frivolous lawsuits, but that’s what Jim Banks is doing here. What amazing times we live in.
Filed Under: distributor liability, jim banks, publisher liability, republican study committee, section 230, tort reform