No, Revoking Section 230 Would Not 'Save Democracy'

from the what-is-wrong-with-you-people? dept

Steven Hill, the former policy director with the Center for Humane Technologies -- the non-profit that everyone seems to look to as some sort of knowledgeable source on "anti-Big Tech" talking points -- has come out with one of the most ridiculous op-eds regarding Section 230. And I say that as someone who seems to wade through a dozen or so terrible Section 230 op-eds every day. The title alone, should already make you nervous, but honestly this piece is so bad, so wrong, and so disconnected from reality, it completely undermines the Center for Humane Technology's credibility, even though this guy is no longer associated with them.

The piece is titled: Biden should revoke Section 230 before we lose our democracy, which is just bizarre framing, but I'm open-minded enough to give any piece about Section 230 at least a chance to make its arguments.

Of course, it starts off on the wrong foot since, you know, Biden literally cannot revoke Section 230. That's not how any of this works. You'd think that at least someone would point out that the President doesn't get to just revoke laws that Congress passed and were signed into law. That's just not how any of it works. But... maybe it's just a clueless editor at the Chicago Tribune and the article itself is better... Or maybe not.

The 1st half of the article is basically one long "correlation / not causation" error. It talks about how we now have big internet companies and before we didn't -- and now we also have Trumpism, and before we didn't. Ergo, the theory goes, big tech is somehow responsible for Trumpism. There is not even any attempt to logically connect the two, it's just stated as if it's obvious:

Since the birth of the Big Tech media platforms 15 years ago, democracies around the world have been subjected to a grand experiment: Can a nation’s news and information infrastructure, which is the lifeblood of any democracy, be dependent on digital technologies that allow a global free speech zone of unlimited audience size, combined with algorithmic (nonhuman) curation of massive volumes of mis/disinformation, that can be spread with unprecedented ease and reach?

The evidence has become frighteningly clear that this experiment has veered off course, like a Frankenstein monster marauding across the landscape.

Hill seems totally unaware that we've gone through other periods in history in which nationalists/fascists/populists have become popular and taken over countries. I don't remember social media being to blame for Europe in the 1930s, but maybe I missed it in my history books.

But, even if this was accurate (and it's not), it's still not clear Section 230 has anything to do with any of this (because it doesn't, even in this fantasy world in which social media is responsible for Trumpism/nationalism). The connection to 230, like his connection between social media and growing nationalism is just some random weak correlation bullshit: these companies like Section 230, ergo, any bad things I think have come from these companies, must be the fault of Section 230.

Notably, of course, the essay makes no effort to engage with what problem he's actually trying to solve other than hand-wavey "threats to democracy," nor any attempt to explore how Section 230 works or what role it has here. It just seems to assume that if you removed Section 230, these non-defined problems would be fix.

It is time to push reset in a major way. President Joe Biden should start by revoking Section 230 of 1996′s Communications Decency Act. That’s the law that grants Big Tech Media “blank check” immunity for the mass content that is published and broadcast across their platforms. Revoking Section 230 is not a perfect solution, but it would make these companies somewhat more responsible, deliberative and potentially liable for the worst of their toxic content, including illegal content. Just like traditional media is liable.

No, Steven, that's not how any of this works. They would be "liable" for what, exactly? What is illegal about "toxic" content? What toxic content violates the law, that would somehow make the platforms liable? What is the actual cause of action? He doesn't answer that because the answer is none, whatsoever.

Also it's an ignorant fool's pipedream to believe that removing Section 230 would make companies "more responsible" or "deliberative." How do I know? Because unlike Steven, I actually study this stuff, and look at other areas of the law and the world where they don't have Section 230. For example, even in the US, we already have the DMCA for copyright, which has a regime (notice-and-takedown) that is what most people assume would develop in a world absent Section 230. And how's that working out? Do we see platforms dealing with user-generated content being "more responsible and deliberate" regarding copyright claims?

[insert uproarious laughter here]

No, of course not. What we have instead are companies who are quick to pull down all sorts of perfectly legitimate content to avoid any threat of liability. They practically knock themselves over to takedown content. And studies have shown that a huge number of DMCA takedowns are abusive and not about legitimate copyright claims. Remove 230 and we'll get a lot more of that, and a huge amount of stifling of perfectly fine speech based on a legalistic heckler's veto.

Why do newspapers like the Chicago Tribune let people who clearly have no understanding of this issue write op-eds for them?

Of course, immediately after that Hill recognizes that it wasn't social media that incited the mob to invade the Capitol, but the President, and admits that his own proposed solution is really kinda... not going to help.

But let’s be clear: Some of the worst past outrages would not likely be affected by 230′s revocation. While President Donald Trump’s inciting speech to the mob about a stolen election was false and provocative, other media outlets publish untrue nonsense all the time. It would be difficult to prove legally that any particular individuals or institutions were harmed or motivated by the president’s many outrageous statements.

So revoking Section 230 will likely not have as much impact as its proponents wish or its critics fear.

So then why did you write a whole essay calling for the revocation when you admit it won't actually work?

Then he switches arguments, like he's a Twitter troll and people have called him out for not knowing what he's talking about. Instead of talking about 230, he jumps to another dumb argument: that internet companies should be regulated like public utilities.

The Biden administration should treat these companies more like investor-owned utilities, as the U.S. previously did with telephone, railroad and power companies. (Facebook founder Mark Zuckerberg has suggested such an approach.)

As utilities, they would be guided by a digital license — just like traditional bricks-and-mortar companies must apply for various licenses and permits — that defines the rules and regulations of the business model according to a “duty of care” obligation, a kind of Hippocratic oath that says “first, do no harm.”

That... is also not how any of this works. First of all, utilities tend to have "must carry" rules, which would do the opposite of what Hill himself claimed was the reason we needed 230 in the first place! Second of all, the entire point of having utilities is when you have natural monopolies over commodity style, non-differentiated products. That's not true of social media. Third, if they were regulated by the government in the manner that Hill seems to want, you'd run into serious state actor problems, potentially making any "duty of care" obligations to be subject to a 1st Amendment analysis, meaning that all of the speech Hill wants them to take down to "protect democracy" would have to be left up because it's mostly protected by the 1st Amendment.

This isn't just an ignorant argument from someone who doesn't understand the issues. It's a self-contradicting one!

And then he totally shifts arguments again!

One abuse that is ripe for stricter rules is “data grabs” of users’ personal info. These companies never asked for permission to start sucking up our private data, or to track our physical locations, or mass collect every “like,” “share” and “follow” into psychographic profiles of each user that can be targeted and manipulated by advertisers and bad political actors. The platforms started that sneaky practice secretly, forging their destructive brand of “surveillance capitalism.”

Surveillance capitalism! Drink! So he's gone from a "they've allowed bad people online" argument, to "they're a utility" argument (which contradicts the first argument) to now a privacy argument... which has nothing at all to do with Section 230.

Why would anyone ever trust this guy to opine on anything related to this subject?

These companies’ frequent outrages against our humanity are supposedly the price we must pay for being able to post our summer vacation and new puppy pics to our “friends,” or for political dissidents and whistleblowers to alert the world to their just causes. Those are all important uses, but the price paid is very high. We can do better.

I think the Chicago Tribune can do a lot better and maybe find someone who actually knows what they're talking about to opine on this stuff?

Though, at least, the paper did juxtapose this utter dumpster fire of an op-ed with a much better one from Will Duffield talking about the dangers of repealing Section 230, but it's stunning that the first one made it to print at all.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: democracy, joe biden, privacy, section 230, steven hill
Companies: center for humane technologies

Reader Comments

Subscribe: RSS

View by: Thread

  1. icon
    Stephen T. Stone (profile), 1 Feb 2021 @ 7:24pm

    who might you be sir

    Someone who recognizes a bullshit argument and calls it like it is.

    One thing you have going for you that Masnick did not is brevity.

    Stick around. You’ll soon learn that brevity is not one of my strong suits.

    You … put yourself out there as [an “expert”]

    I don’t, can’t, and won’t speak for Mike. And I’m no expert at anything. Alls I am is a regular jackoff who recognizes what 230 does and how destroying it will also destroy the Internet of today.

    what additional legal protections does Section 230 provide, beyond the First Amendment?

    230 provides what I’d probably call “don’t blame the tool” protections: When someone uses a third-party platform to say/do something unlawful, the law puts the liability for that act on the person who did the unlawful thing. People don’t get to sue Ford or Craftsman whenever someone uses one of its products to commit murder. Twitter shouldn’t be held liable for defamation it didn’t directly create or publish.

    And is it necessary?

    Yes, if we judge by how many cases keep getting brought against social media services for speech they didn’t create.

    Mostly it provides protection for what is often called “illegal speech,” and also for “libelous speech.”

    230 doesn’t protect either of those kinds of speech. It protects a service like Twitter from being held liable for third-party speech that falls under those two descriptors. It also makes sure a service like Twitter keeps that protection depending on what moderation decisions it makes.

    Unlawful speech is unlawful no matter who says it. 230 makes sure the responsibility for that speech is put where it should be: on the shoulders of the person who said it.

    That’s a pretty narrow range on the broad spectrum of “free speech” that you … are losing your knickers over.

    Take away 230 and services like Twitter will either overmoderate, undermoderate, or stop accepting all third party speech. And “all third party speech” doesn’t mean “hate speech” or “unlawful speech” — it means “all third party speech”. No service will want to risk being held liable for third party speech, which is why only three outcomes would occur: overmoderation, 4chan clone, or “full Madagascar” (shutting down everything).

    The sites will never refuse accepting third-party speech because that’s how they earn their profits.

    If a site stands to lose more money than it makes because of lawsuits, it’ll stop accepting third party speech. Nobody wants to get sued — especially people who can’t afford to fight lawsuits.

    Over moderating speech? Also not going to happen.

    If a site stands to lsoe more money than it makes because of lawsuits and still wants to keep accepting third party speech, one of two things will happen. Overmoderation is one of those two things.

    In a theoretical situation where 230 is toast, Twitter would likely overmoderate to keep its metaphorical ass out of any legal fires. More speech would be deleted — even speech that might seem otherwise innocent — so Twitter couldn’t/wouldn’t get sued over it. The famous example (before they had to go and ruin it) was Donald Trump: Had he managed to get 230 repealed, Twitter likely would have banned his account soon after the repeal because of all the potentially actionable shit he said.

    there are many countries around the world that do not have a Section 230-type protection

    They don’t need a 230 if their laws/traditions already bar what 230 exists to stop.

    The only way that your … fear about platforms “pulling down all sorts of legitimate content” would ever become realized is if these platforms had any fear of being sued by a particular user. Do you have any idea how much resources it takes to sue Facebook, Google, and Twitter?

    Do you have any idea how many services aside from Facebook, Google, and Twitter exist on the Internet? Because 230 protects them all. And revoking 230 would leave MySpace, LiveJournal, Soundcloud, GoodReads, Mastodon instances, and any other site/service that is smaller than “Big Tech” on the hook for third party speech.

    …oh, and Techdirt. Techdirt would be fucked over by 230 being axed, too.

    under moderate speech? Good heavens, they already do that.

    You misunderstand what I meant by “undermoderate speech”. I’m referring to the outcome that could be called “becoming another 4chan”.

    If a platform can keep its legal liability protections by refusing to moderate speech (it can’t be sued over what it doesn’t know about!), it will do exactly that. That means anything short of CSAM will never be touched — which would make that site another 4chan/8kun shitpit.

    see the New York Times expose about how child pornographers, rapists and other evil users have been using various platforms to live stream their horrendous criminal acts of violence in real time.

    It’s almost as if platforms can’t easily and immediately identify livestreaming material as CSAM/violent content and don’t have the ability to predetermine whether someone is about to livestream violence. Imagine that~.

    And the companies have sometimes refused to take down some of this content, even when requested by the victims.

    And that sucks. And they should be investigated for that. But that doesn’t justify taking out 230.

    we need to put some rules around Big Tech

    When you have some ideas on how to do that without trampling all over their First Amendment rights — and without doing the same to smaller sites/services in the process — you let me know.

    turning the business model into an investor-owned utility

    Oh, wonderful — now how would that apply to Mastodon instances that don’t have a Twitter-like business model but operate a Twitter-like service?

    forbidding these platforms from taking our personal data without user consent

    restricting the hyper-targeted advertising model

    restrictions on how these platforms design their products to target young people

    See, these are actually reasonable-ish ideas. Too bad you surrounded them with a whole bunch of bullshit.

    Italy just mandated that TikTok should block users whose age cannot be verified after the death of a 10-year-old girl who was encouraged via that platform to engage in dangerous behavior

    I’m fine with the idea of that regulation. But I’m always wary of any law passed after a tragedy with the intent to prevent a similar tragedy. Such laws can (and often do) have unintended consequences. I mean, look at the Patriot Act.

    How about some product liability, ever heard of that?

    TikTok didn’t tell that girl to attempt that stunt. TikTok didn’t make her attempt that stunt. TikTok didn’t make her botch the attempted stunt.

    We can have a discussion about the role of social media in younger people’s lives, how such services are designed to be addictive, and anything else that runs along those lines. But if we don’t hold Home Depot liable for someone using a hammer bought at Home Depot to kill someone else, for what reason should TikTok be held liable for a death it neither committed nor played a direct role in making happen?

    Tell me[ — ]do you think the platforms should come up with a way to verify age?

    I think they have plenty of ways already, although they would all involve a user voluntarily giving up a not-zero amount of personal data to those services. Yes or no: Would you trust Twitter with your Social Security number, your driver’s license, the account and routing numbers to your checking account, and any other sensitive information that people could use to commit identity fraud?

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.