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Section 230

Social Media Needs to Be Held Accountable to a Higher Standard Than No Standard



Photo of Sara-Jayne Terp from Atlantic Council

February 8, 2021— The spread of disinformation and misinformation can be controlled if the same rules on transparency required of the broadcast industry are applied to social media, an Atlantic Council webinar heard Wednesday.

That includes making changes to Section 230 of the Communications Decency Act governing liability of internet intermediaries to include a requirement that social media companies make clear who paid for ads that are displayed, said Pablo Breuer, co-author of the Adversarial Misinformation and Influence Tactics and Techniques framework.

Breuer’s framework, which was co-authored with Sara-Jayne Terp, seeks to identify the best means to detect and discuss what Terp referred to as “disinformation behaviors.”

The webinar last Wednesday focused on the critical issue of misinformation and disinformation and the roles and responsibilities of social media, the government and citizens.

Breuer noted that just four years ago, the attitude surrounding misinformation and disinformation campaigns was very different.

“When Sara-Jayne and I started talking about this, people thought we were crazy—they thought there was no disinformation problem,” he said. “Now you see it covered on the nightly news.”

When asked why the issue has only come to the forefront of society within the last couple of years, Breuer pointed out that in the past, disseminating information required a lot of capital. With the advent of social media, that was no longer the case.

Pablo Breuer

Pablo Breuer

“We’ve democratized the ability to reach a mass audience. Now we live in a world where an entertainer has twice the number of followers as the President of the United States,” said Breuer. ”They don’t have to clear their message with anyone—they can say something completely false.”

For a long time, social media was a largely-unregulated wild west of commentary, news and opinions.

But then the data-harvesting exploits of firms like Cambridge Analytica exposed how information was used to mold citizens’ thinking on issues that impacted political elections around the world began to put things into focus.

We may be approaching the end of non-regulation, as the banning of former President Donald Trump and other right-wing political commentators from Twitter and other social media platforms may lead to renewed scrutiny on the power of tech companies.

Breuer conceded that while more attention being focused on the issue is a step in the right direction, there are still huge dangers associated with the spread of fraudulent information and the many channels at the hands of malevolent actors..

Following the banning of the aforementioned figures, more of that base gravitated toward other more receptive applications, including Parler and Gab.

Counter-measures to social media disinformation?

Terp and Breuer compiled a list of what they regard as effective countermeasures to mitigate misinformation.Terpnoted that many people have been unknowingly co-opted as “unwitting agents.” In addition to being unwitting, they are not necessarily being influenced by external entities.

“Disinformation is coming from inside the house. What we are seeing is this move past, ‘the Russians are coming,’ to a more honest discussion about financial motivations, political motivations and reputational drivers of misinformation.

Terp also expressed that there is a strong relationship between privacy, democracy, and disinformation. She explained how greater consumer privacy reduces the level of targeting by outside entities in terms of the content a consumer is exposed to.

In the aftermath of Facebook’s move to wholly integrate Whatsapp into the social media ecosystem, for example, Signal, a privacy-by-design messaging app, saw its adoption skyrocket. End-to-end encryption messaging has also been a problem for law enforcement, they say, because it inhibits their ability to access messages of criminals.

Terp described disinformation as merchandise, and that one of the primary goals of anyone trying to curb its spread should be to take money out of it. According to Terp, countermeasure efforts deployed by social media platforms designed to make disinformation less profitable have had a mitigating effect.

Tackling bad behavior, not combatting people

In her conclusion, Terp made it clear that the only way to make policies that are effective at combatting the spread of disinformation is to tackle the behavior and not people. More needs to be done to spot behaviors early so that social media and government  can engage in more preventative action, she said, rather than simply reacting to things as they happen.

Breuer offered some advice for the average person: He encouraged the audience to engage with those they disagree with, and to avoid trapping themselves in a virtual echo chamber.

He added the government needs to reexamine Section 230 and  be more proactive in crafting policy to address the demands of modern technology.

Section 230

Section 230 Shuts Down Conversation on First Amendment, Panel Hears

The law prevents discussion on how the first amendment should be applied in a new age of technology, says expert.



Photo of Ron Yokubaitis of, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)

WASHINGTON, March 9, 2023 – Section 230 as it is written shuts down the conversation about the first amendment, claimed experts in a debate at Broadband Breakfast’s Big Tech & Speech Summit Thursday.  

Matthew Bergman, founder of the Social Media Victims Law Center, suggested that section 230 avoids discussion on the appropriate weighing of costs and benefits that exist in allowing big tech companies litigation immunity in moderation decisions on their platforms. 

We need to talk about what level of the first amendment is necessary in a new world of technology, said Bergman. This discussion happens primarily in an open litigation process, he said, which is not now available for those that are caused harm by these products. 

Photo of Ron Yokubaitis of, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)

All companies must have reasonable care, Bergman argued. Opening litigation doesn’t mean that all claims are necessarily viable, only that the process should work itself out in the courts of law, he said. 

Eliminating section 230 could lead to online services being “over correct” in moderating speech which could lead to suffocating social reform movements organized on those platforms, argued Ashley Johnson of research institution, Information Technology and Innovation Foundation. 

Furthermore, the burden of litigation would fall disproportionally on the companies that have fewer resources to defend themselves, she continued. 

Bergman responded, “if a social media platform is facing a lot of lawsuits because there are a lot of kids who have been hurt through the negligent design of that platform, why is that a bad thing?” People who are injured have the right by law to seek redress against the entity that caused that injury, Bergman said. 

Emma Llanso of the Center for Democracy and Technology suggested that platforms would change the way they fundamentally operate to avoid threat of litigation if section 230 were reformed or abolished, which could threaten freedom of speech for its users. 

It is necessary for the protection of the first amendment that the internet consists of many platforms with different content moderation policies to ensure that all people have a voice, she said. 

To this, Bergman argued that there is a distinction between algorithms that suggest content that users do not want to see – even that content that exists unbeknownst to the seeker of that information – and ensuring speech is not censored.  

It is a question concerning the faulty design of a product and protecting speech, and courts are where this balancing act should take place, said Bergman. 

This comes days after law professionals urged Congress to amend the statue to specify that it applies only to free speech, rather than the negligible design of product features that promote harmful speech. The discussion followed a Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube.   

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Section 230

Congress Should Amend Section 230, Senate Subcommittee Hears

Experts urged Congress to amend tech protection law to limit protection for the promotion of harmful information.



Photo of Hany Farid, professor at University of California, Berkley

WASHINGTON, March 8, 2023 – Law professionals at a Senate Subcommittee on Privacy, Technology and the Law hearing on Wednesday urged Congress to amend Section 230 to specify that it applies only to free speech, rather than the promotion of misinformation.

Section 230 protects platforms from being treated as a publisher or speaker of information originating from a third party, thus shielding it from liability for the posts of the latter. Mary Anne Franks, professor of law at the University of Miami School of Law, argued that there is a difference between protecting free speech and protecting information and the harmful dissemination of that information.

Hany Farid, professor at University of California, Berkley, argued that there should be a distinction between a negligently designed product feature and a core component to the platform’s business. For example, YouTube’s video recommendations is a product feature rather than an essential function as it is designed solely to maximize advertising revenue by keeping users on the platform, he said.

YouTube claims that the algorithm to recommend videos is unable to distinguish between two different videos. This, argued Farid, should be considered a negligently designed feature as YouTube knew or should have reasonably known that the feature could lead to harm.

Section 230, said Farid, was written to immunize tech companies from defamation litigation, not to immunize tech companies from any wrongdoing, including negligible design of its features.

“At a minimum,” said Franks, returning the statue to its original intention “would require amending the statute to make clear that the law’s protections only apply to speech and to make clear that platforms that knowingly promote harmful content are ineligible for immunity.”

In an State of the Net conference earlier this month, Frank emphasized the “good Samaritan” aspect of the law, claiming that it is supposed to “provide incentives at platforms to actually do the right thing.” Instead, the law does not incentivize platforms to moderate its content, she argued.

Jennifer Bennett of national litigation boutique Gupta Wessler suggested that Congress uphold what is known as the Henderson framework, which would hold a company liable if it materially contributes to what makes content unlawful, including the recommendation and dissemination of the content.

Unfortunately, lamented Eric Schnapper, professor of law at University of Washington School of Law, Section 230 has barred the right of Americans to get redress if they’ve been harmed by big tech. “Absolute immunity breeds absolute irresponsibility,” he said.

Senator Richard Blumenthal, R-Connecticut, warned tech companies that “reform is coming” at the onset of the hearing.

This comes weeks after the Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube. The case saw industry dissention on whether section 230 protects algorithmic recommendations. Justice Brett Kavanaugh claimed that YouTube forfeited its protection by using recommendation algorithms but was overturned in the court ruling.

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Content Moderation, Section 230 and the Future of Online Speech

Our comprehensive report examines the extremely timely issue of content moderation and Section 230 from multiple angles.



In the 27 years since the so-called “26 words that created the internet” became law, rapid technological developments and sharp partisan divides have fueled increasingly complex content moderation dilemmas.

Earlier this year, the Supreme Court tackled Section 230 for the first time through a pair of cases regarding platform liability for hosting and promoting terrorist content. In addition to the court’s ongoing deliberations, Section 230—which protects online intermediaries from liability for third-party content—has recently come under attack from Congress, the White House and multiple state legislatures.

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