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Section 230

Attorney General Bill Barr Calls for ‘Recalibrated’ Section 230 as Justice Department Hosts Tech Immunity Workshop

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Photo of Attorney General Bill Barr in May 2019 by Shane McCoy used with permission

WASHINGTON, February 19, 2020 – Attorney General William Barr laid out the case for “recalibrating” Section 230 of the Communications Decency Act in response to what he called a concentrated power over information that resides in the hands of Silicon Valley tech companies.

Because “the big tech platforms of today often monetize” their power through advertising, “their financial incentives in content distribution may not always align with what is best for the user,” Barr said in remarks kicking off a Wednesday workshop at the U.S. Justice Department.

Originally a non-controversial law seen as a means to incentivize online free speech, Section 230 has come to be seen as amplifying the ills wrought by information technology. Populists on the right and progressives on the left are now calling for changes to Section 230.

The Justice Department’s workshop may be an effort to put Section 230 protections for tech companies on the chopping block.

At the same time, Barr’s agency is leading a major antitrust inquiry into the tech sector, potentially up to and including efforts to break up Google or Facebook.

“While the department’s antitrust review is looking at these developments from a competition perspective, we must also recognize what this concentration means for Section 230 immunity,” Barr said.

Background about the origins of Section 230

Section 230 became law as part of the 1996 Telecommunications Act. In those early days of the internet, Section 230 arose against a backdrop of online service providers such as America Online, CompuServe, and Prodigy. CompuServe did not engage in any form of content moderation, whereas Prodigy positioned itself as a family-friendly alternative by enforcing content guidelines and screening offensive language.

It didn’t take long for both platforms to be sued for defamation. In the 1991 case Cubby v. CompuServe, the federal district court in New York ruled that CompuServe could not be held liable for third party content of which it had no knowledge, similar to a newsstand or library.

But in 1995, the New York supreme court ruled in Stratton Oakmont v. Prodigy that the latter platform had taken on liability for all posts simply by attempting to moderate some, constituting editorial control.

The decision prompted pro-technology representatives Ron Wyden, D-Ore., and Rep. Chris Cox, R-Calif., to introduce an amendment to the Communications Decency Act, ensuring that providers of an interactive computer service would not be held liable for third-party content, thus allowing them to moderate with impunity.

See Broadband Breakfast’s four-part series on the CDA:

Section I: The Communications Decency Act is Born

Section II: How Section 230 Builds on and Supplements the First Amendment

Section III: What Does the Fairness Doctrine Have to Do With the Internet?

Section IV: As Hate Speech Proliferates Online, Critics Want to See and Control Social Media’s Algorithms

Barr blasts the ‘many’ problems with a ‘broad Section 230 immunity’

At the Justice Department on Wednesday, Barr made his views known for changing the law. He said that “the Department of Justice is concerned about the expansive reach of Section 230.” He complained that Section 230 blunts the impact of civil tort lawsuits that should have a greater bite in complementing criminal law enforcement efforts of the Justice Department.

In particular, he said, “the Anti-Terrorism Act provides civil redress for victims of terrorist attacks on top of the criminal terrorism laws, yet judicial construction of Section 230 has severely diminished the reach of this civil tool.”

Second, he said that “broad Section 230 civil immunity” can actually be used against the federal government. That was something, he said, that was not intended by the framers of Section 230.

Third, Barr said that Section 230 makes it harder to police “lawless spaces” online. “We are concerned that internet services, under the guise of Section 230, can not only block access to law enforcement — even when officials have secured a court-authorized warrant — but also prevent victims from civil recovery.”

“The concerns regarding Section 230 are many and not all the same,” Barr concluded. And yet he added: “We must also recognize the benefits that Section 230 and technology have brought to our society, and ensure that the proposed cure is not worse than the disease.”

First panel at the Justice Department workshop addressed free speech in light of Section 230

The first panel focused on the issue of liability for speech that takes place on tech platforms.

Section 230’s use of the word “publisher” makes it clear that this statute refers to defamation law, said Annie McAdams, a lead counsel in lawsuits against Backpage.com and Facebook over human trafficking.

The 26 words in Section 230 (c)(1) read: “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.”

But as is often the case with debates about Section 230, McAdams was met with pushback by her fellow panelists.

While legal experts usually cite the Stratton Oakmont v. Prodigy decision is discussing Section 230, Fordham University School of Law Professor Benjamin Zipursky said he saw state tort law as a crucial element to understanding the law.

Zipursky referring to the entirety of Section 230 subsection (c). Subsection (c)(1) is about “treatment of publisher or speaker.” But subsection (c)(2) concerns the  broader issue of civil liability for actions taken by tech companies to restrict indecent material on their platforms.

Indeed, the entire Section 230(c) is subtitled as a “protection for ‘Good Samaritan’ blocking and screening of offensive material.”

According to Zipursky, after Prodigy was sued for attempting to filter information to some degree, companies wanted to avoid filtering at all costs so that they wouldn’t be considered a “publisher.”

Zipursky compared companies’ weariness to filter content with the legal obligations of those who provide emergency medical care.

Before state-wide “Good Samaritan” laws were passed, people who performed CPR or other emergency medical care were liable for any damages or injuries. Now, “good Samaritans” are protected for their effort to help and save, just as are  “interactive computer services” under Section 230.

Zipursky agreed that Section 230 has defamation-related language, but that McAdams’ interpretation isn’t a “realistic way” to view it, said Zipursky.

WilmerHale Partner Patrick Carome said that Section 230 liability protections were intended to be vast, and not just limited to defamation. And that is because of the excessive amounts of content that these platforms have to manage, he said.

Carome defended Section 230, arguing that it fostered an environment where small companies can also succeed. Allowing companies to self-moderate makes room for future companies to continue developing, and that Section 230 does what good laws do, he said: It “puts the focus on the actual wrongdoers.”

He also took vigorous exception to Attorney General Barr’s statement about Section 230 cutting into the ability of victims of terrorism to get compensation from platforms. “It’s just flat out wrong,” said Carome. “Those cases are for the most part being decided not on Section 230 grounds.”

Was Section 230 designed to limit liability for more than just publishing?

United States Naval Academy Professor Jeff Kosseff agreed that Section 230 cast a broader net. The authors of Section 230 did not intend for the law to be narrow and solely for defamation, he said. While he said that he anticipated political forces leading eventually to changes in Section 230,  those changes need to be carefully constructed so as to not stifle competition.

But Carrie Goldberg, a victims’ rights attorney who specializes in revenge porn case, agreed with McAdams. One of Goldberg’s clients attempted to sue Grindr, when an abusive ex impersonated him and sent his geolocation to several people through the app.

Section 230 is being used as an excuse to not intervene, she said. Section 230 puts users in danger and denies them “access to justice,” she said.

In response to Carome’s remark that Goldberg’s client should have been aided by the criminal justice system, Goldberg said Section 230 needs to be reformed because “it’s gone too far.”

Carome pushed back, reminding panelists that Section 230 does not only pertain to big tech. It protects the thousands of sites that would not survive “10,000 bites of litigation,” said Carome.

Zipursky advocated for “crafting a middle path” compared to the current law, instead of moving ahead with a “kneejerk reaction.”

Section 230’s impact upon criminal conduct

The second panel of the day focused on whether Section 230 liability had facilitated criminal activity.

University of Miami Professor Mary Anne Franks noted the irony of Section 230’s Good Samaritan clause. It does not model helpful behavior, but rather amplifies harm and profits from it, said Franks. Indeed, she said that subsection (c)(1) actually disincentivizes the tech platforms like Google and Facebook from acting as “good Samaritans.”

But Kate Klonick, a professor  at St. John’s University, disagreed. Large tech players like Facebook have economic incentives to avoid bad press. Additionally, it knows that advertisers do not want ads nearby or associated with harmful content, she said.

Moreover, tech develops at such rapid speeds it is difficult to foresee the consequences of rushed responses to the current law, said Klonick.

Computer and Communications Industry Association President Matt Schruers said that many of the larger companies have already taken initiative in following Section 230 and reporting harmful activity.

Schruers said that Section 230 does generate positive incentives because it allows companies to build platforms without fear of litigation. Removing subsection (c)(1) would result in a “heckler’s veto”: Important content on tech platforms would be deleted out of fear of liability.

When asked about the future possibility of artificial intelligence regulating bad content, Franks said the tech industry is always promising to fix tech issues with more tech. She called this an “illusion.”

As an example of big tech facilitating crime, Franks brought up Facebook Live. When Facebook Live was created, people were livestreaming crimes like rape and murder, said Franks. “This is the world that Section 230 built.”

Mark Zuckerberg did not kill anyone, countered Klonick, to applause from the audience. She said Franks was taking issue with humanity, and that Facebook was just the tool used to exhibit these actions.

Section 230

Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms

The decision resulted in an unusual court split. Justice Kagan sided with Justice Alito but refused to sign his dissent.

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Caricature of Samuel Alito by Donkey Hotey used with permission

WASHINGTON, May 31, 2022 – On a narrow 5-4 vote, the Supreme Court of the United States on Tuesday blocked a Texas law that Republicans had argued would address the “censorship” of conservative voices on social media platforms.

Texas H.B. 20 was written by Texas Republicans to combat perceived bias against conservative viewpoints voiced on Facebook, Twitter, and other social media platforms with at least 50 million active monthly users.

Watch Broadband Breakfast Live Online on Wednesday, June 1, 2022

Broadband Breakfast on June 1, 2022 — The Supreme Court, Social Media and the Culture Wars

The bill was drafted at least in part as a reaction to President Donald Trump’s ban from social media. Immediately following the January 6 riots at the United States Capitol, Trump was simultaneously banned on several platforms and online retailers, including Amazon, Facebook, Twitter, Reddit, and myriad other websites.

See also Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021

Close decision on First Amendment principles

A brief six-page dissent on the matter was released on Tuesday. Conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented, arguing that the law should have been allowed to stand. Justice Elena Kagan also agreed that the law should be allowed to stand, though she did not join Alito’s penned dissent and did not elaborate further.

The decision was on an emergency action to vacate a one-sentence decision of the Fifth Circuit Court of Appeals. The appeals court had reversed a prior stay by a federal district court. In other words, the, the law passed by the Texas legislature and signed by Gov. Greg Abbott is precluded from going into effect.

Tech lobbying group NetChoice – in addition to many entities in Silicon Valley – argued that the law would prevent social media platforms from moderating and addressing hateful and potentially inflammatory content.

In a statement, Computer & Communications Industry Association President Matt Schruers said, “We are encouraged that this attack on First Amendment rights has been halted until a court can fully evaluate the repercussions of Texas’s ill-conceived statute.”

“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law. We appreciate the Supreme Court ensuring First Amendment protections, including the right not to be compelled to speak, will be upheld during the legal challenge to Texas’s social media law.”

In a statement, Public Knowledge Legal Director John Bergmayer said, “It is good that the Supreme Court blocked HB 20, the Texas online speech regulation law. But it should have been unanimous. It is alarming that so many policymakers, and even Supreme Court justices, are willing to throw out basic principles of free speech to try to control the power of Big Tech for their own purposes, instead of trying to limit that power through antitrust and other competition policies. Reining in the power of tech giants does not require abandoning the First Amendment.”

In his dissent, Alito pointed out that the plaintiffs argued “HB 20 interferes with their exercise of ‘editorial discretion,’ and they maintain that this interference violates their right ‘not to disseminate speech generated by others.’”

“Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others,” he said, referencing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.

“But we have rejected such claims in other circumstances,” he continued, pointing to PruneYard Shopping Center v. Robins.

Will Section 230 be revamped on a full hearing by the Supreme Court?

“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law,” Alito said.

Alito argued that there is a distinction between compelling a platform to host a message and refraining from discriminating against a user’s speech “on the basis of viewpoint.” He said that H.B. 20 adopted the latter approach.

Alito went on, arguing that the bill only applied to “platforms that hold themselves out as ‘open to the public,’” and “neutral forums for the speech of others,” and thus, the targeting platforms are not spreading messages they endorse.

Alito added that because the bill only targets platforms with more than 50 million users, it only targets entities with “some measure of common carrier-like market power and that this power gives them an ‘opportunity to shut out [disfavored] speakers.’”

Justices John Roberts, Stephen Breyer, Sonya Sotomayor, Brett Kavanaugh, and Amy Coney Barrett all voted affirmatively – siding with NetChoice LLC’s emergency application – to block H.B. 20 from being enforced.

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Section 230

Parler Policy Exec Hopes ‘Sustainable’ Free Speech Change on Twitter if Musk Buys Platform

Parler’s Amy Peikoff said she wishes Twitter can follow in her social media company’s footsteps.

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Screenshot of Amy Peikoff

WASHINGTON, May 16, 2022 – A representative from a growing conservative social media platform said last week that she hopes Twitter, under new leadership, will emerge as a “sustainable” platform for free speech.

Amy Peikoff, chief policy officer of social media platform Parler, said as much during a Broadband Breakfast Live Online event Wednesday, in which she wondered about the implications of platforms banning accounts for views deemed controversial.

The social media world has been captivated by the lingering possibility that SpaceX and Tesla CEO Elon Musk could buy Twitter, which the billionaire has criticized for making decisions he said infringe on free speech.

Before Musk’s decision to go in on the company, Parler saw a surge in member sign-ups after former President Donald Trump was banned from Twitter for comments he made that the platform saw as encouraging the Capitol riots on January 6, 2021, a move Peikoff criticized. (Trump also criticized the move.)

Peikoff said she believes Twitter should be a free speech platform just like Parler and hopes for “sustainable” change with Musk’s promise.

“At Parler, we expect you to think for yourself and curate your own feed,” Peikoff told Broadband Breakfast Editor and Publisher Drew Clark. “The difference between Twitter and Parler is that on Parler the content is controlled by individuals; Twitter takes it upon itself to moderate by itself.”

She recommended “tools in the hands of the individual users to reward productive discourse and exercise freedom of association.”

Peikoff criticized Twitter for permanently banning Donald Trump following the insurrection at the U.S. Capitol on January 6, and recounted the struggle Parler had in obtaining access to hosting services on AWS, Amazon’s web services platform.

Screenshot of Amy Peikoff

While she defended the role of Section 230 of the Telecom Act for Parler and others, Peikoff criticized what she described as Twitter’s collusion with the government. Section 230 provides immunity from civil suits for comments posted by others on a social media network.

For example, Peikoff cited a July 2021 statement by former White House Press Secretary Jen Psaki raising concerns with “misinformation” on social media. When Twitter takes action to stifle anti-vaccination speech at the behest of the White House, that crosses the line into a form of censorship by social media giants that is, in effect, a form of “state action.”

Conservatives censored by Twitter or other social media networks that are undertaking such “state action” are wrongfully being deprived of their First Amendment rights, she said.

“I would not like to see more of this entanglement of government and platforms going forward,” she said Peikoff and instead to “leave human beings free to information and speech.”

Screenshot of Drew Clark and Amy Peikoff during Wednesday’s Broadband Breakfast’s Online Event

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, May 11, 2022, 12 Noon ET – Mr. Musk Goes to Washington: Will Twitter’s New Owner Change the Debate About Social Media?

The acquisition of social media powerhouse Twitter by Elon Musk, the world’s richest man, raises a host of issues about social media, free speech, and the power of persuasion in our digital age. Twitter already serves as the world’s de facto public square. But it hasn’t been without controversy, including the platform’s decision to ban former President Donald Trump in the wake of his tweets during the January 6 attack on the U.S. Capitol. Under new management, will Twitter become more hospitable to Trump and his allies? Does Twitter have a free speech problem? How will Mr. Musk’s acquisition change the debate about social media and Section 230 of the Telecommunications Act?

Guests for this Broadband Breakfast for Lunch session:

  • Amy Peikoff, Chief Policy Officer, Parler
  • Drew Clark (host), Editor and Publisher, Broadband Breakfast

Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.

Illustration by Mohamed Hassan used with permission

WATCH HERE, or on YouTubeTwitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTubeTwitter and Facebook

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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Section 230

Leave Section 230 Alone, Panelists Urge Government

The debate on what government should — or shouldn’t — do with respect to liability protections for platforms continues.

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Photo of Josh Hammer, Paul Larken and Niam Yaraghi by Douglas Blair via Twitter

WASHINGTON, May 10, 2022 – A panelist at a Heritage Foundation event on Thursday said that the government should not make changes to Section 230, which protects online platforms from being liable for the content their users post.

However, the other panelist, Newsweek Opinion Editor Josh Hammer, said technology companies have been colluding with the government to stifle speech. Hammer said that Section 230 should be interpreted and applied more vigorously against tech platforms.

Countering this view was Niam Yaraghi, senior fellow at the Brookings Institution’s Center for Technology Innovation.

“While I do agree with the notion that what these platforms are doing is not right, I am much more optimistic” than Hammer, Yaraghi said. “I do not really like the government to come in and do anything about it, because I believe that a capitalist market, an open market, would solve the issue in the long run.”

Addressing a question from the moderator about whether antitrust legislation or stricter interpretation of Section 230 should be the tool to require more free speech on big tech platforms, Hammer said that “Section 230 is the better way to go here.”

Yaraghi, by contrast, said that it was incumbent on big technology platforms to address content moderation, not the government.

In March, Vint Cerf, a vice president and chief internet evangelist at Google, and the president of tech lobbyist TechFreedom warned against government moderation of content on the internet as Washington focuses on addressing the power of big tech platforms.

While some say Section 230 only protects “neutral platforms”, others claim it allows powerful companies to ignore user harm. Legislation from the likes of Amy Klobuchar, D-Minn., would exempt 230 protections for platforms that fail to address Covid mis- and disinformation.

Correction: A previous version of this story said Sen. Ron Wyden, D-Ore., agreed that Section 230 only protected “neutral platforms,” or that it allowed tech companies to ignore user harm. Wyden, one of the authors of the provision in the 1996 Telecom Act, instead believes that the law is a “sword and shield” to protect against small companies, organizations and movements against legal liability for what users post on their websites.

Additional correction: A previous version of this story misattributed a statement by Niam Yaraghi to Josh Hammer. The story has been corrected, and additional context added.

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