No, and they wouldn't be by any informed understanding of the law. That's not how the law has ever worked in any developed society.
Generally, law has both the concept of intent and reasonableness. As such, a company that inadequately polices malicious and abusive content because that content is wildly profitable (hi Google and Facebook), we should have the legal ability to fine these companies into oblivion, because their behavior is not reasonable and the intent behind it can be divined from their records.
Meanwhile, if you an individual with a blog, see someone making a bad comment on your blog and you ban the person, the law would recognize that as a pretty reasonable moderation practice.
> No, and they wouldn't be by any informed understanding of the law.
You are misinformed about the history of 230. 230 was proposed exactly because the law was interpreted the way you're saying it wouldn't be.
From Wikipedia below, added emphasis mine:
> This concern was raised by legal challenges against CompuServe and Prodigy, early service providers at this time. CompuServe stated they would not attempt to regulate what users posted on their services, while Prodigy had employed a team of moderators to validate content. Both faced legal challenges related to content posted by their users. In Cubby, Inc. v. CompuServe Inc., CompuServe was found not be at fault as, by its stance as allowing all content to go unmoderated, it was a distributor and thus not liable for libelous content posted by users. However, Stratton Oakmont, Inc. v. Prodigy Services Co. found that as Prodigy had taken an editorial role with regard to customer content, it was a publisher and legally responsible for libel committed by customers.
> [...]
> United States Representative Christopher Cox (R-CA) had read an article about the two cases and felt the decisions were backwards. "It struck me that if that rule was going to take hold then the internet would become the Wild West and nobody would have any incentive to keep the internet civil", Cox stated.
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It's become increasingly popular for people to say that Section 230 was a mistake. Usually they support that with claims that concerns about its repeal are purely theoretical fearmongering, despite the fact that we literally have case president on the books right now about what the Internet would look like without Section 230, and how the existing laws were being interpreted.
When people raise concerns that without Section 230 the Internet would be divided up into completely unmoderated platforms and aggressively curated gatekeepers, that's not fearmongering. It's history.
Ironically, the only websites that wouldn't be affected by a repeal of Section 230 are the completely unmoderated hellholes we want to discourage online, because they have Compuserve's precedent and the 1st Ammendment to hide behind.
So this is the thing that is really confusing me: isn't Signal like CompuServe? Signal doesn't moderate my content and in fact can't; so why would a repeal of Section 230 matter to Signal? And like, yes: maybe the people at Signal personally care... but that's not how this article is written. I feel like most of the people who are super knee-jerk pro-230 are ignoring this precedent you have pointed to of CompuServe: if you build something that really and truly is a distribution platform, shouldn't that be OK?
I think so, at least in theory. In practice, I suspect that would eventually get challenged in court. But (IANAL), I also suspect that you're right, and a platform like Signal would fall under the same category as CompuServe and could make a strong argument for itself using that case.
Here's where it gets tricky though -- Signal is kind of an anomaly, and there are a lot of platforms being built that both moderate content and incorporate E2E encryption. Matrix is the prime example, but even non-obvious platforms like Mastodon are talking about e2e encryption for DMs. To get a really good fediverse rolling, or even just to encourage platforms like Facebook to start using more zero-knowledge encryption, we need the ability to use E2E encryption alongside moderated content.
Pure distribution platforms are rarer than people think. I'm not particularly worried that ending Section 230 will be a disaster for private, closed, encrypted channels. But most of the best parts of the Internet happen in public channels and semi-open communities, and getting rid of 230 would have a really big negative impact on the general discourse within those communities and the freedom of like-minded people to get together and form communities online without a fear of lawsuits.
That being said, I think Signal does itself something of a disservice by not strongly asserting it's a pure distribution channel. They could talk about how this is dangerous for encryption overall while still advocating that the law wouldn't apply to someone in their position. We can simultaneously say that repealing Section 230 would be really bad for online communities, but not existentially bad for closed communication channels like Signal.
And purely from a strategic point of view, we should be interested in saying things like that, because if Section 230 does get repealed it would be very nice to have a fallback position that's already been articulated and made clear to Congress and general audiences, and that preserves at least some encryption.
But, Signal has their own set of real lawyers, so it may be that they disagree that CompuServe would apply, or it may be that they think that Congress would just keep challenging them until it found some attack that worked, or it may just be that they think aligning themselves alongside Open platforms like Matrix is more valuable than making a case that they would be exempt. I'm not going to pretend to know what's going through their minds.
I personally think you would be surprised at how much of what we currently have could continue to work in a world without Section 230. Right now, people are just taking a cheap shortcut of "let's just hire some moderators to moderate it", and enjoying it as it gives them control over narrative (letting them choose when to apply a firm hand in moderating and when to be lazy about it: there are just so many examples of companies abusing their moderation power in ways that have nothing to do with politics, along with issues of both subtle and not so subtle racism and misogyny--such as bans on photos of women breastfeeding--being perpetuated by the current system). I bet most of what we have right now could continue to work, albeit with pretty major architectural changes to the web... ones which admittedly might not still be conducive to large players extracting rent for hosting and organizing everything (maybe with more decentralized client-side mechanisms as opposed to centralized server-side mechanisms for helping people navigate content); and, what doesn't translate, was maybe not worth preserving in the first place. Either way, it seems to me like we should be having an honest conversation about the details of what we have and what we like and what we need to keep pulling it off, so we can figure out what the tradeoffs are, and this article from Signal equating a loss of Section 230 with somehow not being able to have end-to-end encryption is the exact opposite of that: it is more misinformation being thrown at an already giant mess of misunderstanding.
> I personally think you would be surprised at how much of what we currently have could continue to work in a world without Section 230
Hackernews wouldn't.
I advocate for digital rights online; particularly the Right to Communicate[0]. But the Right to Communicate goes hand in hand with the Right to Filter[1]. Human moderation isn't a shortcut, it's the backbone of small, cozy forums and independent sites. Human moderation on a personalized scale is what makes smaller communities so much nicer than giant algorithmically curated platforms like Twitter or Youtube.
The way we marry the Right to Filter and the Right to Communicate is with systems like the Fediverse that make it easy for people to form new communities on the fly, to join and leave existing communities without any pain or fuss, and to copy their content around or download it out of data silos whenever they'd like to. While we give users that convenience, we also recognize that communities have an inalienable right to organize themselves and filter the content that they host and see. In this way, the Right to Communicate and the Right to Filter reinforce each other, filling in the problematic gaps and abuses that either right would have in isolation.
Section 230 is what makes that possible. Decentralization isn't magic. The law and the DOJ will attack community organizers and label them as publishers regardless of whether or not they are personally hosting the content in their communities. It doesn't matter what architecture you use; if you're going to have an open community someplace, that community needs to be able to enforce its own rules and norms. And Section 230 will make them liable if they attempt to do so.
And even outside of the Fediverse, so much of the Internet matters.
To hear you very lightly say something like:
> and, what doesn't translate, was maybe not worth preserving in the first place
I'm almost not sure how to respond to a claim like that. HN isn't worth preserving? IRC channels aren't worth preserving? Matrix isn't worth preserving? Self-publishing storefronts, independent forums, and comment sections on blogs aren't worth preserving? Email isn't worth preserving?
> Signal equating a loss of Section 230 with somehow not being able to have end-to-end encryption
For Signal, no, maybe not. For a lot of other services, including the vast majority of the Fediverse, yes. I think your reading of Signal's status as a distributor is pretty reasonable. But don't jump from that reading to saying that this won't have an impact on encryption.
Signal is a zero-knowledge, closed communication platform. It's not decentralized, it has essentially no moderation of any kind, and it has no communities of any kind. An open community with its own norms, memes, and content standards is not zero-knowledge about the content it's hosting. A law that meant that only closed, blind systems like Signal could make use of E2E encryption wouldn't eliminate all encryption, but it would restrict a large number of platforms from using encryption to make themselves more private and more secure.
But in a world where we feel it was backwards that moderators were punished and unmoderated platforms weren't... Congress decided "let's just make everyone immune" was the right way to go?
And again, I think the examples here are missing the same concept that Section 230 fails to recognize: Profit, as I discussed here: https://news.ycombinator.com/item?id=22816016 It seems like the author of Section 230 failed to recognize we're in a capitalist society when this regulation was drafted.
When platforms are taking a cut out of illegal activity, as Big Tech platforms do when they operate ad networks, courts would have to agree that any platform party, regardless of whether or not they currently moderate, should be held to some manner of responsibility.
Right now, when an old lady clicks a Google search result for "mapquest", clicks the top link for "Maps Quest"[0] because Google ads aren't distinguishable from real search results to the untrained eye, is pushed to install a browser extension (from the Chrome Web Store) that hijacks her browser's new tab and search, injects malicious ads, and scrapes her private info to relay to an attacker, Google makes money. And is wholly protected by Section 230 for that activity and unable to be held responsible for refusing to delist the malicious ad.
In what world is that the right legal position?
[0] (This is a very real world example, I've done a lot of senior citizen tech support, and this is how 90% of them get owned.)
I don't like this malware example. Yes Section 230 protects Google from that and yes google is in a position of trust for the content they serve up but there's something wrong with your stance.
The point in your old lady's chain of actions where a law was and should be considered broken was when the malware ads were injected, not before. You can't go that far up the chain, there are too many proxies, too many people with intents that are not obviously malicious. People should be given the benefit of the doubt in most cases.
In addition, in your profit explanation that you linked to you stated that if the service can't scale up human interactions to match with complaints then that service shouldn't exist. That's laughable. To do so would make service owners so vulnerable to automated complaints that legitimate ones would never make it through, that goes for up and down the business scale. What your proposal ends up doing is creating a non-anonymous internet by necessity.
That example has absolutely nothing to do with Sec 230. Google’s ad design is all on Google. If it were illegal, Sec 230 wouldn’t protect them. And while Google might be protected against liability for Mapquest’s business practices, Mapquest isn’t. If their behavior is harmful and illegal, they are liable.
MapQuest did nothing wrong in this example. The problem is the fake sites that are taking the top spot in search results above the legitimate MapQuest link when you search Google for MapQuest, and Google refuses to delist them. And of course, Google lets people buy ads for other companies' trademarks, which is a whole different ball of issues.
(MapQuest is a popular one for malicious sites to pretend to be because most of the people searching for it are seniors... they heard about it twenty years ago and then never moved on from searching for it when they want directions somewhere.)
The moment someone points out Google makes a huge amount of money on scams and malware, and due to Section 230, can't really be held responsible for it.
Fining Google doesn't help the problem there, you would want to work with Google to find out who made the deceptive ad and deal with them so they can't continue on to hurt more people
To follow up, we've also tried going in the opposite direction from 230 more recently with SESTA/FOSTA.
From that Wikipedia page, some of the current effects (again, emphasis mine):
> Craigslist ceased offering its "Personals" section within all US domains in response to the bill's passing, stating "Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services." Furry personals website Pounced.org voluntarily shut down, citing increased liability under the bill, and the difficulty of monitoring all the listings on the site for a small organization.
> The effectiveness of the bill has come into question as it has purportedly endangered sex workers and has been ineffective in catching and stopping sex traffickers. The sex worker community has claimed the law doesn't directly address issues that contribute to sex trafficking, but instead has drastically limited the tools available for law enforcement to seek surviving victims of sex trade. Similar consequences of the law's enactment have been reported internationally.
> A number of policy changes enacted by the popular social networks Facebook and Tumblr (the latter having been well known for having liberal policies regarding adult content) to restrict the posting of sexual content on their respective platforms have also been cited as examples of proactive censorship in the wake of the law, and a wider pattern of increased targeted censorship towards LGBT communities.
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Now, this kind of effect doesn't get as much mainstream attention because people are primed not to think of sex censorship as "real" censorship. But again, we have examples on the book of what happens to legitimate services (both large and small) when laws like this get passed. It's not fearmongering, it's history.
People have these assumptions that laws are going to be reasonably applied -- that's not a safe assumption to make if you pay attention to the history of these laws.
I'm largely unsympathetic to those arguments for the same reason that I'm unsympathetic to all of the lawmakers saying, "well this time we regulate encryption it will be different." We have a number of examples of how this can go wrong (and has gone wrong). If somebody wants to propose that it'll be different the next time we weaken 230 or add exceptions, then I think the onus is on them to provide some kind of compelling evidence as to why it's going to be different this time.
What makes you certain that the policies you propose won't have the same effect as FOSTA/SESTA?
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As to why these laws primarily affect platforms that are already trying to moderate and not free-for-all hellholes, that's in part because of existing case law around the difference between a publisher and a distributor.
From Wikipedia's entry on Compuserve's case (once again, emphasis mine):
> The court held that "CompuServe has no more editorial control over such a publication [as Rumorville] than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so."
Bills like SESTA/FOSTA have managed to pass without a lot of opposition because, again, people are primed to think that sex censorship isn't real censorship. But where more mainstream content is concerned, you should understand that proposing punishments for distributors is a pretty big change to existing libel/speech laws. Big enough that I don't even feel comfortable speculating on what the legal challenges or possible effects would be. That's a radical departure from how we currently think about speech in the US, not just on the Internet but in physical/print spaces as well.
"Unreasonable removal" isn't actually much of a concern here under our current legal doctrine: As these companies are private entities, they can decide that they simply don't want this or that on their platform, and that can be as unreasonable as they like.
Presumably, platforms which profit off user content have a financial incentive already to allow user content as much as they can, Section 230 only removes the financial incentive to remote bad content. Removing Section 230 will restore balance: Companies will still be motivated to keep as much non-abusive content as they can, but will face legal challenge if they fail to remove abusive content.
(There's an argument to be made that Facebook and Google represent "public spaces" in the modern Internet era, but we currently have no legal precedent for applying first amendment rights to privately owned properties. Either we'd need a huge legal shift to apply the first amendment to private spaces or we'd need to nationalize online platforms.)
> Section 230 only removes the financial incentive to remote bad content.
Please go read the actual law. It’s neither long nor complicated.
Section 230 corrected a problem in other law that made it dangerous to even attempt to moderate content. Before it became law, websites basically had to choose between not moderating at all, or assuming liability for all content.
Hell, I’ll just quote the relevant part in full:
(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;
Generally, law has both the concept of intent and reasonableness. As such, a company that inadequately polices malicious and abusive content because that content is wildly profitable (hi Google and Facebook), we should have the legal ability to fine these companies into oblivion, because their behavior is not reasonable and the intent behind it can be divined from their records.
Meanwhile, if you an individual with a blog, see someone making a bad comment on your blog and you ban the person, the law would recognize that as a pretty reasonable moderation practice.