As Opposition Mounts Against Section 230 Gutting, Facebook Approves With Caveats

Facebook is once again throwing the Internet under the bus by siding with those who want to gut Section 230. This as opposition mounts against the changes.

It’s been three months since our oracle-like predictions of the Biden presidency. At this point, we are just waiting for the last prediction to come true so we can officially call it a total prediction sweep since every other prediction has either come true or is in the process of coming true. One of our accurate predictions revolved around the continued war on Section 230. Obviously, that came true when Democrats tabled the potentially disastrous SAFE TECH Act.

Reaction has been pretty universal. Almost no one likes it. The few supporters usually fall into two categories: Hardcore Democrats who basically bless the parties every move no matter what and those who want to just burn the whole Internet into the ground once and for all. For everyone else, they see what a complete disaster this legislation will unleash onto the Internet.

As most observers know, Section 230 is a law that offers protection to Internet sites and services. Essentially, if a user posts something on a site or platform, the platform or site is not automatically liable for what the user posts. It sounds really simply and straight forward. That’s because it is. There is no provision that makes trolls immune to lawsuits. There is no provision that means platforms or sites are completely immune from all liability in all forms. In fact, it doesn’t even mean that large tech companies can do anything they please without consequence. This despite the many rumors and misinformation perpetuated by certain media outlets and notorious news specials. That doesn’t mean certain voices won’t try and slap on controversy into the debate when that controversy has no place in it, but it’s really difficult to try and find flaws in this law since its so heavily rooted in common sense.

If there is anything the transition between the Trump Administration and the Biden Administration has shown, it’s that both parties seem intent on reforming this law no matter how much it doesn’t need reforming. Republican’s want to scrap network neutrality because they think they can’t perpetuate their propaganda because of it (Section 230 doesn’t do that). Democrats want to reform it because they think it helps spread misinformation (Section doesn’t do that either).

Despite all the common sense, logic, and stating the obvious, lawmakers are continuing to forge ahead with reforms anyway. The SAFE TECH Act doesn’t actually repeal the law altogether, but from a functional standpoint, there’s not a lot the reform can do to gut it any further without fully repealing it. In a nutshell, if money changes hands at any point, Section 230 doesn’t apply to you. So, if you rent server space, take out a domain name, receive donations or subscriptions, or even take in revenue from advertising, you no longer can claim Section 230 protections which means users actions will make you automatically liable. If there is a way to have a website while still legally claiming Section 230 immunity under the SAFE TECH Act, we honestly can’t find it. It has led some to conclude that their sites will cease to operate because it is impossible to continue operations from a practical standpoint.

So, should this law move forward in any way, a lot will be at stake here. It seems that some large tech giants are not exactly fans of this legislation. Google has come out against the proposed law. From Yahoo! News:

Google CEO Sundar Pichai will join other Big Tech chiefs on Thursday at a Congressional hearing on social media’s role in promoting extremism and misinformation. And in his written testimony ahead of the hearing, Pichai, whose company also owns YouTube, lays out exactly what Google (GOOG, GOOGL) has done to stanch the flow of such content.

But the CEO also warns committee members against making dramatic changes to their public enemy No. 1: Section 230 of the Communications Decency Act, which protects web platforms from liability for content posted by third parties and allows them to freely moderate content.

“Regulation has an important role to play in ensuring that we protect what is great about the open web, while addressing harm and improving accountability,” Pichai notes in his remarks presented to the House Commerce Committee.

“We are, however, concerned that many recent proposals to change Section 230 — including calls to repeal it altogether — would not serve that objective well. In fact, they would have unintended consequences — harming both free expression and the ability of platforms to take responsible action to protect users in the face of constantly evolving challenges.”

Sex workers, who have been doing quite an impressive job at raising awareness on digital rights issues in the last several years (i.e. raising the alarm about SETSA/FOSTA as well as highlighting the dangers of EARN IT), are also raising the alarm about this legislation. From OneZero:

As a female sex worker and frequent recipient of targeted harassment, I’m asking legislators to listen to us, one of the communities who will be most affected by their proposed bill, before inadvertently eroding the remaining protections we have online.

Those protections rest in Section 230 of the Communications Decency Act, which made the modern web as we know it. The beauty of Section 230 is that it allows all websites, regardless of their budget or the size of their legal team, to host user-generated content and implement their own content moderation policies.

The SAFE TECH Act would erode those protections. It would hold companies liable for their users’ behavior. The SAFE TECH Act would force small websites to spend $1 million or more, by one estimate, to prove to courts that users aren’t causing any one of nine new types of broad, ill-defined harm. These include cyberstalking, targeted harassment, civil rights violations, discrimination, and more.

Only the wealthiest, most powerful companies would be able to afford setting their own content moderation policies. Everyone else would run the real risk of being sued into oblivion by wealthy people who don’t like what people are saying about them online.

We have strong evidence the SAFE TECH Act would backfire, because that’s what happened after the last major effort that attacked Section 230: the Stop Enabling Sex Traffickers Act and Fight Online Sex Trafficking Act, commonly referred to as SESTA-FOSTA.

Sadly, there is an outlier in all of this: Facebook. Much like how it threw the Internet under the bus when it caved to the Australian link tax law, it seems that Facebook is doing the same in an effort to bolster its stranglehold on the Internet market. From Telecoms:

As social media such as Facebook increasingly act to restrict what its users can say on the platform, it’s reasonable to say they’re moving in an editorial direction. Presuming this trend continues, at what point do these platforms become publishers and thus lose their Section 230 protections? That is the key question US lawmakers need to address, especially since they’re often the loudest voices calling for a more interventionist approach by those same platforms.

“I believe that Section 230 would benefit from thoughtful changes to make it work better for people, but identifying a way forward is challenging given the chorus of people arguing—sometimes for contradictory reasons—that the law is doing more harm than good,” said Zuckerberg.

“We believe Congress should consider making platforms’ intermediary liability protection for certain types of unlawful content conditional on companies’ ability to meet best practices to combat the spread of this content. Instead of being granted immunity, platforms should be required to demonstrate that they have systems in place for identifying unlawful content and removing it.

“Platforms should not be held liable if a particular piece of content evades its detection—that would be impractical for platforms with billions of posts per day—but they should be required to have adequate systems in place to address unlawful content. Definitions of an adequate system could be proportionate to platform size and set by a third-party.”

Many commentators have interpreted this as a typical call by a massive company for additional layers of bureaucracy, so expensive that only the largest, most profitable outfits can afford to implement them. This is a classic technique used by incumbent giants to raise the barriers to entry to their market, thus restricting competition, and hopefully lawmakers will see it as such.

The article references a tweet from Cory Doctorow:

A monopolist’s first preference is always “don’t regulate me.” But coming in at a close second is “regulate me in ways that only I can comply with, so that no one is allowed to compete with me.”

The hope, as mentioned in those sources, is that lawmakers will see through Facebook’s stance. The problem is that lawmakers have a lot of motivation to “do something” here. Because of this, it’s already difficult to convince some of them that doing nothing about Section 230 is actually the correct course of action (even though it really is the correct course of action). So, it’ll be tempting to simply follow through with what Facebook is proposing because they “did something”. If Facebook survives anyway, then, in the minds of some, the Internet isn’t harmed (even though Facebook is obviously not the Internet).

At any rate, this is definitely nerve racking for a lot of digital rights observers. Lawmakers see a problem with the Internet right now and the current proposed solution is to basically drop a legal nuke on the whole thing, killing everything in the country in the process. The further along this goes, the more this could turn out to be a fight for survival. So, we could be in for one extremely ugly fight if this moves ahead.

Drew Wilson on Twitter: @icecube85 and Facebook.

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