Academic: Problems Created By Undermining Section 230 Can Be Solved… By Undermining Section 230?

from the say that again? dept

I remain confused at why so many people endorse Macarthur Genius award winner, Prof. Danielle Citron’s views on Section 230. Over and over again people say that her ideas for reforming Section 230 are sensible. Except that they are not. She has falsely insisted that companies have no incentives to moderate and that their incentives are to push the most extreme content. This has been debunked over and over again. If it were true, then every website would turn into 8kun. But that doesn’t happen, because most websites realize that when your website is full of garbage people, it drives away other users (including those more likely to support you or your advertisers) and it drives away advertisers.

Citron’s big idea is to put in place a duty of care or “reasonableness” standard, but we’ve explained at length why that’s the kind of idea only an academic with no experience running a website could love. It would lead to a ton of costly litigation in which companies would have to repeatedly defend their moderation practices in court. At best this would lead to companies all adopting nearly identical moderation practices to whichever company survived the litigation gauntlet first — effectively crushing any ability to experiment and innovate in the moderation market, and likely locking in Facebook as one of the few companies that can afford to handle moderation’s liability risks.

All that said, I’m even more flabbergasted by Citron’s initial response to the (now walked back) news that OnlyFans was planning to phase out sexually explicit content. Many, many people have made the connection between OnlyFans’ decision and FOSTA, the last time Section 230 was amended to add more liability to platforms. Of course, as we’ve now seen, FOSTA has had a massive human cost, is leading to some wacky vexatious civil lawsuits, and according to the GAO’s own study, has failed to live up to any of its promises.

In an article at CNN about the OnlyFans decision, Citron makes an absolutely bizarre claim, that the answer to OnlyFans deplatforming sex workers… is to put more liability on OnlyFans so that those sex workers can sue. I only wish I were kidding.

Just like social media companies, payment processors are protected by Section 230 of the Communications Act of 1934, Citron said. That’s the signature law that grants broad legal immunity to Facebook and Twitter for many of the content-moderation decisions they make ? and the law that SESTA-FOSTA amended to create an exception for sex ads.

Citron wants to see changes made to Section 230 that could expose platforms to more liability under certain circumstances. Perhaps, she said, those changes might even allow sex workers who feel their businesses have been harmed by payment processors to sue them for tortious interference.

“We’re talking about OnlyFans, where we’re seeing sex workers doing safe work. It’s from their own homes, they’re making content on their own terms,” Citron said.

So… the answer to sex workers being kicked off platforms that fear that they might face liability under FOSTA hole in Section 230, is to open up another hole in Section 230 so that those sex workers can then sue OnlyFans for tortious interference?!? Um, what?

Even just bringing up tortious interference as a cause of action is bizarre. That’s the same sort of argument that people like Laura Loomer have used to say people reporting her to Twitter engaged in “tortious interference” when Twitter kicked her off the platform. Tortious interference in the context discussed here seems like a plan for vexatious nuisance litigation and SLAPP suits, not any kind of legitimate cause of action.

But, even more to the point, how is it a solution to the consequences of adding more liability to say “let’s just pile on more liability to deal with those consequences”? It’s liability all the way down. But it’s completely disconnected from how all of this works in the real world.

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Comments on “Academic: Problems Created By Undermining Section 230 Can Be Solved… By Undermining Section 230?”

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22 Comments
Anonymoussays:

I have never seen a 230 reform idea that was remotely reasonable and this is no different.

Unlike a lot legislation, section 230 is as close to perfect as can be expected, doing exactly what it’s meant to and notying else. Literally the only reason to "reform" it is some people hating freedom of speech and expression.

See also, the same people ignoring the 1st amendment because they don’t have the guts to attack it even though they’d really want to.

As an aside, I’m not a lawyer but I don’t think banks blackmailing internet services they don’t like has anything to do with section 230 anyway.

That One Guysays:

That's not how that works. That's not how anything works.

Because if there’s one thing that will make a platform more likely to allow people to use it it it’s another threat of being sued should said platform moderate in a way that the users don’t like.

I’m not sure if the AC above has it right in that they’ve decided on the goal(‘Kill or otherwise gut 230)’ and are working backwards from that or if they are just woefully ignorant on the matter but in neither case should they be seen as a trustworthy source regarding 230 if this is what can be expected of them.

That One Guysays:

Re: Re: Re: Re: That's not how that works. That's not how anything works

Yes and no, there seems to be two groups trying to kill 230 for diametrically opposed reasons, those that want to scrap it because it allows sites to host content they don’t like(or don’t take down that content as quick as they want) and who believe that if they get rid of or cripple 230 the liability sites face for hosting content will force them to moderate much more and on the other side those that are anti-230 because it protects sites’ ability to moderate and who want the law gutted because they believe that if moderating carries risk sites will do it a lot less.

Anonymoussays:

Re: Re: Re: Re: That's not how that works. That's not how anything works

Like what That One Guy said, there are two anti-230 groups who want to screw with the section for two completely different reasons.

One group (the "reform 230" group) want to change the law because they either don’t feel some content is being taken down fast enough or there’s some content they don’t agree with and want censored and the other group (anti-230) feel like too much content is being taken down and in particularly the right-wing feels they are being discriminated against and unfairly targeted in regards to takedowns.

Meanwhile there’s those of us in the middle who say 230 is fine as-is and about as good as it could possibly be and any attempt to screw with it will chill speech and make the internet as a whole worse off.

Anonymoussays:

Companies have no incentives to moderate and that their incentives are to push the most extreme content. This has been debunked over and over again.

Someone tell this to Reddit, which let r/The_Donald fester for years and faced no consequences, removing the subreddit only after its users built out a whole other website for themselves, and more recently Reddit defending the anti-vax bullshit on their site..

That One Guysays:

Re: Re:

Individual sites will screw it up on occasion, prioritizing attention and ‘engagement’ over honesty and not letting deranged and/or dishonest people lie and get people killed in the case of nurgle cultists but by and large the idea holds as a platform that doesn’t moderate or at least try to quarantine the lunatics will find itself the next 4chan or worse, leading to an increasing exodus of non-loons and advertisers.

Anonymoussays:

Re: Re: Re: Re:

Reddit isn?t ?screwing it up on occasion?, though. They seem to have figured out how to hit the gas and pump the brakes so they make money off of letting people lie and get other people killed, and taking action only when the issue hits critical mass and gets in the news.

Sites that let shit stir up because it?s lucrative, then put the kibosh on it after enough controversy arises and ?promise to do better?, they still get people killed, they fucking know it. But too many people believe them when they say they ?promise to do better?, and too many users of conscience stay at the ?good parts? of the website instead of leaving it altogether, so as to ignore the corrupt nature of the site and its showrunners.

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re:

?How dare things I don?t like exist somewhere else? is a a different situation compared to ?This website?s leadership is ok with letting people spread lies that get people killed, and I don?t want to use it anymore.?

When situations like this come up, I?m sick and tired of seeing ?Things that people don?t like? or ?Content they don?t agree with? being used as a euphemism for ?Blatant lies and/or bigotry? to make it seem like people are getting angry over nothing.

Kobysays:

Maybe A Different Target

to open up another hole in Section 230 so that those sex workers can then sue OnlyFans for tortious interference?!? Um, what?

It’s a little ambiguous, but the author may not be talking about interactive service providers on the internet, but rather payment processors.

"Perhaps, she said, those changes might even allow sex workers who feel their businesses have been harmed by payment processors to sue them for tortious interference."

I think the "them" refers to payment processors, not platforms on the internet. Again, it’s a little ambiguous. But most of the article rails against banks deciding what internet sites are and are not permitted to host. The payment processors are perhaps gaining too much power to decide what legal activities people can pay for with their own money, and have become a primary source of a moral panic.

That Anonymous Cowardsays:

All those poor tortoises, always being interfered with…

"Perhaps, she said, those changes might even allow sex workers who feel their businesses have been harmed by payment processors to sue them for tortious interference."

I have to ask the question…
Was she dropped a lot as a child because her mom liked the nice thumping noise?

We should allow those working in an illegal industry file a lawsuit, in a court, declaring they are sex workers & demanding to be compensated because they can no longer accept plastic in exchange for the services they provide.

o_O

Perhaps she has just been in her ivory tower removed from reality for to long & no longer understands how reality works.

Sex work is work.
Sex work is NOT people forced into doing it.
Perhaps if we stopped harassing those people who chose to do sex work, we could discover finally that 42 million child hookers aren’t trucked in to every superb owl.

Morality is a shit basis for laws & we don’t belong in anyones bedroom judging what consenting adults do. But then this is ‘merika where some places still ban dildos… to protect the children?!

Anonymoussays:

Not that I’m a fan of whackadoodle claims like the one’s this essay has exorcised, but what stops ICANN or ARIN from dropping websites on a whim if Section 230 is paramount at all times? Shouldn’t claims of breach of contract or tortuous interference succeed if the alleged tortfeasor can be proven to be violating a covenant of good-faith and fair dealing? None of this applies to the current situation of course, but I have my concerns about private institutions being used a censorship machines for a personal agenda.

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