US Lawmakers Quest to Murder the Internet By Axing Section 230 Continues

Section 230 is a critical law that has allowed the open internet to flourish. Naturally, US lawmakers have a problem with that.

One of the things I’ve said off and on is that speech has become the new piracy. Throughout the 2000’s and 2010’s, lawmakers, believing the lies of the copyright industry, have pushed laws in their bid to crack down on so-called “piracy” (really non-commercial copyright infringement at worst). Laws like the Digital Millennium Copyright Act (DMCA) have become the law of the land. The consequences is that innovation have been significantly held back where inventions and innovative business models have had to be shelved. In the process, “piracy” had continued on unhindered as the vacuum of a lack of an innovative business model continued to be filled by unauthorized services. In short, “piracy” has become public enemy number one in the digital world and lawmakers were smashing everything they could in their failed bid to “stamp out piracy”.

What observers have argued for decades is that if the business models were adjusted and reflected the modern world, then piracy would be gradually reduced. While those calls were long ignored by the copyright industry, others, taking significant business risk, tried out that theory anyway. Eventually, infrastructure was built and deals were inked (i.e. Apple Music and Spotify). Like clockwork, piracy started to shrink in size as attractive new business models got people to convert over to legitimate services. As usual, the critics of the “sue ’em all” approach were proven right all along. It wasn’t until recent years when the Cory Doctorow termed “enshittification” took over did people start returning to piracy sources through reduced quality service (i.e. password sharing crackdowns). So, there is certainly turbulence going on these days.

Frighteningly enough, recent debates have disturbing similarities to the “piracy” debates of old. Instead of p2p file-sharing, though, the subject that has drawn fire is speech itself. Lawmakers and media talking heads alike have been decrying the “excesses” of speech and how it represents a massive societal threat. Laws must be changed to curtail the scourge of free speech that many claim is “out of control”. If that sounds like an exaggeration, one columnist straight up spelled out the media’s hatred towards free speech.

The thing with all of this, and this is a common thing I’ve noticed both in Canada and the US political realms, is that there is disagreement of what speech is “bad”. For left leaning politicians, the problem is that misinformation about things like climate change and vaccines are a major problems and that speech that questions left leaning policies should also be stamped out. For right leaning politicians, the problem revolves around speech that involves “pornographic material”, LGBT+ content, anti-racism messaging, and sexual health material. That, for them, is the “bad speech” that must be stamped out of existence along with any commentary that disagrees with right leaning policy making decision making.

On the surface, this sounds like two radically different approaches, but the two approaches have far more similarities then some people let on. Specifically, both approaches are basically an effort to crack down on speech they happen to not like while protecting speech they happen to like. Another way of putting it is “awful but lawful” content. You may not like the existence of explicit material, but it is (frequently) protected speech. You may not like the existence of speech that denies climate science, but that is protected speech.

The problem here (and it’s a huge one) is that politicians have a specific image of civil discourse online and they want to force that image onto the internet no matter how problematic that effort is. This dictatorial effort, especially in a society where democracy has at least some value, is inherently problematic from a legal perspective. Yet, some politicians want to go full steam ahead and smash anything and everything in order to get their way (much like how politicians wanted to smash anything and everything to achieve the goal of “stamping out piracy”).

For American lawmakers, one of the major targets they are going after is the famed “Section 230”. It is known as “the 26 words that made the Internet”. It’s not a particularly hard law to understand (granted there are some nuances that affect how it applies). The text itself is this:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

To put it another way, if you post a comment on a given website, for instance, then you are responsible for that content, not the web service. It has allowed websites and user generated content to flourish. Yet, some are desperately trying to re-imagine how this law actually works. Some falsely claim that large platforms cannot be sued altogether because of this law (large platforms can still be sued). Others argue that the law is outdated because of the existence of “Big Tech” (even though that makes no sense because small websites still exist) and that Section 230 must be removed entirely.

What those pushing for a repeal of Section 230 don’t understand is that if Section 230 is removed entirely, the entire open web (at least, the open web from the US perspective) would immediately be imperilled. If an inflammatory comment was posted on a website, the web owners are automatically liable for that speech. Few would take on such liability for the sake of creating a cool new website. The shutdowns of different websites would basically be like a free speech and an online innovation Armageddon. Websites hosted in the US (and there are LOTS in that scenario) would practically shut down overnight. SESTA/FOSTA actually provided a very real preview of what happens in that scenario.

For some, though, none of that matters because, in their mind, sticking it to “Big Tech” is all that matters. In a seeming repeat of what happened when the DMCA became law, there is a rather big push in the US to “sunset” Section 230. From TechDirt:

The internet is the wild west! Kids are dying! AI is scary and bad! Algorithms! Addiction! If only there was more liability and we could sue more often, internet companies would easily fix everything. Once, an AI read my mind, and it’s scary. No one would ever bring a vexatious lawsuit ever. Wild west! The “like” button is addictive and we should be able to sue over it.

Okay, you’re basically now caught up with the key points raised in yesterday’s House Energy & Commerce hearing on sunsetting Section 230. If you want to watch the nearly three hours of testimony, you can do so here, though I wouldn’t recommend it

It went like most hearings about the internet, where members of Congress spend all their time publicly displaying their ignorance and confusion about how basically everything works.

But the basic summary is that people are mad about “bad stuff” on the internet, and lots of people seem to falsely think that if there were more lawsuits, internet companies would magically make bad stuff disappear. That, of course, elides all sorts of important details, nuances, tradeoffs, and more.

First of all, bad stuff did not begin with the internet. Blaming internet companies for not magically making bad stuff disappear is an easy out for moralizing politicians.

But the simple reality is that no matter how many resources and tools are put towards protecting people, some people are going to do bad things or be put in unsafe positions. That’s humanity. That’s society. Thinking that if we magically threaten to sue companies that it will fix things is not just silly, it’s wrong.

The witnesses in favor of sunsetting 230 also tried to play this game. They insisted that frivolous lawsuits would never be filed because that would be against legal ethics rules (Ha!), while also insisting that they need to get discovery from companies to be able to prove that their cases aren’t frivolous. This, of course, ignores the fact that merely the threat of litigation can lead companies to fold. If the threat includes the extraordinarily expensive and time consuming (and soul-destroying) process of discovery, it can be absolutely ruinous for companies.

Removing Section 230 would give people a kind of litigator’s veto. If you threaten a lawsuit over a feature, some content, or an algorithm recommendation you don’t like, smaller companies will feel pressured to remove it to avoid the risk of costly endless litigation.

It wouldn’t do much to harm “big tech,” though, since they have their buildings full of lawyers, snf large trust & safety teams empowered by tools they spend hundreds of millions of dollars developing. They can handle the litigation. It’s everyone else who suffers. The smaller sites. The decentralized social media sites. The small forums. The communities that are so necessary to folks like Kate when she faced her own tragic situation.

But none of that seemed to matter much to Congress, who just wants to enable ambulance chasing lawyers to sue Google and Meta. They heard a story about a kid who had an eating disorder, and they’re sure it’s because Instagram told them to. It’s not realistic.

The real victims of this rush to sunset Section 230 will be all the people, like Kate, and also like tons of kids looking for their community, or using the internet to deal with various challenges online.

Congress wants a magic pony. And, in the process, they’re going to do a ton of harm. Magic ponies don’t exist. Congress should deal in the land of reality.

The report is a follow-up to another report which discussed how Congress wants to eliminate Section 230 if they don’t get their way.

It’s difficult to underscore how much damage sunsetting Section 230 would be unleashed onto the internet. I know some people (correctly) point out that if Section 230 were eliminated, speech would find its way onto another more anonymous platform offshore. Things like anti-vaxxer propaganda and people drawing genitalia will just wind up elsewhere. Speech will survive and that aligns nicely with my earlier comparison to file-sharing. People will still talk on the internet and it will contain speech you may not like.

The problem with that perspective is that it ignores the significant costs of instilling a more archaic internet. Thanks to Section 230, many legitimate businesses offering great services were permitted to thrive. Want to start a web forum or small news website? That can easily happen today. Want to turn that into a business? That can happen with the services that exist (though it has been increasingly difficult these days). Eliminating Section 230 wipes out many, if not, all players, from the entire chain of starting up a business that helps make the internet a better place.

For instance, many sites including mine use advertising to generate a small amount of revenue. Without Section 230, those ads that are generated are immediately a liability. Yes, the web owner didn’t necessarily choose to display a specific ad, but if it appears, that web administrator is liable anyway. We also run a Patreon to allow the audience to help fund this project. Do you really think Patreon wants to take on that liability of users posting whatever they think is good to post up? Heck no. I have my doubts Patreon would survive in the US.

How about web hosting or getting a DNS name? Both of those services could very easily get swept up in the liability in the post Section 230 world. So, no domain name and no web hosting (at least in the US). What do you have left? No web host, no domain name, no means of generating revenue means no website.

The absolute best case scenario is that everything gets offshored to other countries. I could theoretically take out web hosting and a DNS in, say, Europe, Australia, New Zealand, or Canada, but that only gets me the initial first steps. I would also have to wait for other services to get restored elsewhere to generate any kind of income at all. Even then, I wouldn’t know for sure if it’s going to be as good or reliable as what I already have. It bears repeating that a LOT of existing web infrastructure is based out of the US in the first place.

The consequences of this are immense. Immediately, we are talking about a huge swath of economic activity being wiped out overnight. Over time, the hostile environment to online innovation would mean more and more businesses shut down. Some might escape the shores of the US and set up shop in other parts of the world, but for other innovators, the expense of relocating wouldn’t be worth it. What’s more, there would eventually be political pressure for other countries to follow suit of the US as speech appearing on servers overseas would cause politicians to exert political pressure on other countries to crack down (similar to what we saw in the past with The Pirate Bay and other major file-sharing websites).

What’s more, the security of users would be thrown into chaos. We are talking about a staggering shift of online innovation and malware developers would no doubt be chomping at the bit to take advantage of the situation.

At any rate, everyone suffers through some angle or another should Section 230 get outright repealed. The free and open internet would take a substantial hit and the damage caused by the repeal of Section 230 would take years, if not, decades to recover as other countries scramble to fill the void left behind by the nuclear bomb dropped by the US government onto the American internet.

As the added cherry on top of this, all of this is over something as petty as “someone said something bad on the internet”. This potential travesty of destroying the open internet in the US is over one of the dumbest reasons imaginable. Yet, some people out there want to go along with this because if their side of the political aisle is saying this is necessary, then it must be a good idea. The level of ignorance over all of this is incredibly frustrating.

Drew Wilson on Mastodon, Twitter and Facebook.

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