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Section 230

Supporters of Section 230 Agreed About Concerns, But Counterarguments Dominated Panel Discussion

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Photo of Eric Goldman in September 2017 from Wikipedia

February 13, 2021 – With many current proposals to revise Section 230 of the Communications Decency Act, supporters of the landmark internet law on Tuesday discussed how new proposals could heavily interfere with the First Amendment.

The general angst about how people are using the internet badly, coupled with rising politicization and online hate speech have given advocates for change an upper hand. But Cathy Gellis, a tech law expert and Section 230 specialist, said that advocates for charge are overlooking how Section 230 has worked to the benefit of users.

“In some degree, we are reacting to some very real problems, but we’re not necessarily reacting with the appropriately nuanced analysis of what is really the root cause of concerns,” said Gellis, speaking at an event of the progressive American Constitution Society for Law and Policy.

During the meeting, which was hosted by the chapter of the organization at Santa Clara Law School, the discussion centered heavily on how future changes to Section 230 might diminish users’ speaking power and create unnecessary conflict.

Gellis insisted that these issues need to be analyzed with caution and consider users’ perspectives on the operation of social platforms.

Eric Goldman, associate dean at the law school, and co-director of the High-Tech Law Institute there, raised the concerns of some elected officials. He agreed that there are bad things that happen on the internet due to the outsized influence of overly-capitalized big tech platforms in the digital space.

Yet Goldman said that the entire critique of Section 230 has a severe structural problem: Critics of Section 230 have bought into the idea that big entities censor governments when they impose speech restrictions on how people talk to each other on the platforms. The truth, he said, is the reverse: “The First Amendment exists to keep it so that the government or big tech companies can’t use their power to keep citizens from being able to talk back to people in power.”

“Not having a regulatory system that prevents intermediaries from adopting policies, where a content-based discrimination is sharply limited, allows the internet to be user friendly,” agreed David Greene, civil liberties co-director of the Electronic Frontier Foundation, which has championed Section 230 for more than 25 years.

Cutting Section 230 would injure the First Amendment and the power of speech, he said, and make web sites lack user-friendly policies.

It is still unclear how the changes of Section 230 will enhance connectivity, he said. Whether the platforms are doing a good job or not, there is still and always will be the question of more or less moderation of content.

Reporter Samuel Triginelli was born in Brazil and grew up speaking Portuguese and English, and later learned French and Spanish. He studied communications at Brigham Young University, where he also worked as a product administrator and UX/UI designer. He wants a world with better internet access for all.

Section 230

Experts Warn Against Total Repeal of Section 230

Panelists note shifting definition of offensive content.

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WASHINGTON, November 22, 2021 – Communications experts say action by Congress to essentially gut Section 230 would not truly solve any problems with social media.

Experts emphasized that it is not possible for platforms to remove from their site all content that people may believe to be dangerous. They argue that Section 230 of the Communications Decency Act, which shields platforms from legal liability with respect to what their users post, is necessary in at least some capacity.

During discussion between these experts at Broadband Breakfast’s Live Online Event on Wednesday, Alex Feerst, the co-founder of the Digital Trust and Safety Partnership, who used to work as a content moderator, said that to a certain extent it is impossible for platforms to moderate speech that is “dangerous” because every person has differing opinions about what speech they consider to be dangerous. He says it is this ambiguity that Section 230 protects companies from.

Still, Feerst believes that platforms should hold some degree of liability for the content of their sites as harm mitigation with regards to dangerous speech is necessary where possible. He believes that the effects of artificial intelligence’s use by platforms makes some degree of liability even more essential.

Particularly with the amount of online speech to be reviewed by moderators in the internet age, Feerst says the clear-cut moderation standards are too messy and expensive to be viable options.

Matt Gerst, vice president for legal and policy affairs at the Internet Association, and Shane Tews, nonresident senior fellow at the American Enterprise Institute, also say that while content moderation is complex, it is necessary. Scott McCollough, attorney at McCollough Law Firm, says large social media companies like Facebook are not the causes of all the problems with social media that are in the national spotlight right now, but rather that social features of today’s society, such as the extreme prevalence of conflict, are to blame for this focus on social media.

Proposals for change

Rick Lane, CEO of Iggy Ventures, proposes that reform of Section 230 should include a requirement for social media platforms to make very clear what content is and is not allowed on their sites. McCullough echoed this concern, saying that many moderation actions platforms take presently do not seem to be consistent with those platforms’ stated terms and conditions, and that individual states across the nation should be able to look at these instances on a case-by-case basis to determine whether platforms fairly apply their terms and conditions.

Feerst highlighted the nuance of this issue by saying that people’s definitions of “consistent” are naturally subjective, but agrees with McCullough that users who have content removed should be notified of such, as well as the reasoning for moderators’ action.

Lane also believes that rightfully included in the product of Section 230 reform will be a requirement for platforms to demonstrate a reasonable standard of care and moderate illegal and other extremely dangerous content on their sites. Tews generally agreed with Lane that such content moderation is complex, as she sees a separation between freedom of speech and illegal activity.

Gerst highlighted concerns from companies the Internet Association represents that government regulation coming from Section 230 reform will require widely varied platforms to standardize their operation approaches, diminishing innovation on the internet.

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. You can watch the November 17, 2021, event on this page. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.

Wednesday, November 17, 2021, 12 Noon ET — The Changing Nature of the Debate About Social Media and Section 230

Facebook is under fire as never before. In response, the social-networking giant has gone so far as to change its official name, to Meta (as in the “metaverse”). What are the broader concerns about social media beyond Facebook? How will concerns about Facebook’s practices spill over into other social media networks, and to debate about Section 230 of the Communications Act?

Panelists for this Broadband Breakfast Live Online session:

  • Scott McCullough, Attorney, McCullough Law Firm
  • Shane Tews, Nonresident Senior Fellow, American Enterprise Institute
  • Alex Feerst, Co-founder, Digital Trust & Safety Partnership
  • Rick Lane, CEO, Iggy Ventures
  • Matt Gerst, VP for Legal & Policy Affairs, Internet Association
  • Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources:

W. Scott McCollough has practiced communications and Internet law for 38 years, with a specialization in regulatory issues confronting the industry.  Clients include competitive communications companies, Internet service and application providers, public interest organizations and consumers.

Shane Tews is a nonresident senior fellow at the American Enterprise Institute (AEI), where she works on international communications, technology and cybersecurity issues, including privacy, internet governance, data protection, 5G networks, the Internet of Things, machine learning, and artificial intelligence. She is also president of Logan Circle Strategies.

Alex Feerst is a lawyer and technologist focused on building systems that foster trust, community, and privacy. He leads Murmuration Labs, which helps tech companies address the risks and human impact of innovative products, and co-founded the Digital Trust & Safety Partnership, the first industry-led initiative to establish best practices for online trust and safety. He was previously Head of Legal and Head of Trust and Safety at Medium, General Counsel at Neuralink, and currently serves on the editorial board of the Journal of Online Trust & Safety, and as a fellow at Stanford University’s Center for Internet and Society.

Rick Lane is a tech policy expert, child safety advocate, and the founder and CEO of Iggy Ventures. Iggy advises and invests in companies and projects that can have a positive social impact. Prior to starting Iggy, Rick served for 15 years as the Senior Vice President of Government Affairs of 21st Century Fox.

Matt Gerst is the Vice President for Legal & Policy Affairs and Associate General Counsel at Internet Association, where he builds consensus on policy positions among IA’s diverse membership of companies that lead the internet industry. Most recently, Matt served as Vice President of Regulatory Affairs at CTIA, where he managed a diverse range of issues including consumer protection, public safety, network resiliency, and universal service. Matt received his J.D. from New York Law School, and he served as an adjunct professor of law in the scholarly writing program at the George Washington University School of Law.

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.

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

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Section 230

Democrats Use Whistleblower Testimony to Launch New Effort at Changing Section 230

The Justice Against Malicious Algorithms Act seeks to target large online platforms that push harmful content.

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Rep. Anna Eshoo, D-California

WASHINGTON, October 14, 2021 – House Democrats are preparing to introduce legislation Friday that would remove legal immunities for companies that knowingly allow content that is physically or emotionally damaging to its users, following testimony last week from a Facebook whistleblower who claimed the company is able to push harmful content because of such legal protections.

The Justice Against Malicious Algorithms Act would amend Section 230 of the Communications Decency Act – which provides legal liability protections to companies for the content their users post on their platform – to remove that shield when the platform “knowingly or recklessly uses an algorithm or other technology to recommend content that materially contributes to physical or severe emotional injury,” according to a Thursday press release, which noted that the legislation will not apply to small online platforms with fewer than five million unique monthly visitors or users.

The legislation is relatively narrow in its target: algorithms that rely on the personal user’s history to recommend content. It won’t apply to search features or algorithms that do not rely on that personalization and won’t apply to web hosting or data storage and transfer.

Reps. Anna Eshoo, D-California, Frank Pallone Jr., D-New Jersey, Mike Doyle, D-Pennsylvania, and Jan Schakowsky, D-Illinois, plan to introduce the legislation a little over a week after Facebook whistleblower Frances Haugen alleged that the company misrepresents how much offending content it terminates.

Citing Haugen’s testimony before the Senate on October 5, Eshoo said in the release that “Facebook is knowingly amplifying harmful content and abusing the immunity of Section 230 well beyond congressional intent.

“The Justice Against Malicious Algorithms Act ensures courts can hold platforms accountable when they knowingly or recklessly recommend content that materially contributes to harm. This approach builds on my bill, the Protecting Americans from Dangerous Algorithms Act, and I’m proud to partner with my colleagues on this important legislation.”

The Protecting Americans from Dangerous Algorithms Act was introduced with Rep. Tom Malinowski, D-New Jersey, last October to hold companies responsible for “algorithmic amplification of harmful, radicalizing content that leads to offline violence.”

From Haugen testimony to legislation

Haugen claimed in her Senate testimony that according to internal research estimates, Facebook acts against just three to five percent of hate speech and 0.6 percent of violence incitement.

“The reality is that we’ve seen from repeated documents in my disclosures is that Facebook’s AI systems only catch a very tiny minority of offending content and best content scenario in the case of something like hate speech at most they will ever get 10 to 20 percent,” Haugen testified.

Haugen was catapulted into the national spotlight after she revealed herself on the television program 60 Minutes to be the person who leaked documents to the Wall Street Journal and the Securities and Exchange Commission that reportedly showed Facebook knew about the mental health harm its photo-sharing app Instagram has on teens but allegedly ignored them because it inconvenienced its profit-driven motive.

Earlier this year, Facebook CEO Mark Zuckerberg said the company was developing an Instagram version for kids under 13. But following the Journal story and calls by lawmakers to backdown from pursuing the app, Facebook suspended the app’s development and said it was making changes to its apps to “nudge” users away from content that they find may be harmful to them.

Haugen’s testimony versus Zuckerberg’s Section 230 vision

In his testimony before the House Energy and Commerce committee in March, Zuckerberg claimed that the company’s hate speech removal policy “has long been the broadest and most aggressive in the industry.”

This claim has been the basis for the CEO’s suggestion that Section 230 be amended to punish companies for not creating systems proportional in size and effectiveness to the company’s or platform’s size for removal of violent and hateful content. In other words, larger sites would have more regulation and smaller sites would face fewer regulations.

Or in Zuckerberg’s words to Congress, “platforms’ intermediary liability protection for certain types of unlawful content [should be made] conditional on companies’ ability to meet best practices to combat the spread of harmful content.”

Facebook has previously pushed for FOSTA-SESTA, a controversial 2018 law which created an exception for Section 230 in the case of advertisements related prostitution. Lawmakers have proposed other modifications to the liability provision, including removing protections in the case for content that the platform is paid for and for allowing the spread of vaccine misinformation.

Zuckerberg said companies shouldn’t be held responsible for individual pieces of content which could or would evade the systems in place so long as the company has demonstrated the ability and procedure of “adequate systems to address unlawful content.” That, he said, is predicated on transparency.

But according to Haugen, “Facebook’s closed design means it has no oversight — even from its own Oversight Board, which is as blind as the public. Only Facebook knows how it personalizes your feed for you. It hides behind walls that keep the eyes of researchers and regulators from understanding the true dynamics of the system.” She also alleges that Facebook’s leadership hides “vital information” from the public and global governments.

An Electronic Frontier Foundation study found that Facebook lags behind competitors on issues of transparency.

Where the parties agree

Zuckerberg and Haugen do agree that Section 230 should be amended. Haugen would amend Section 230 “to make Facebook responsible for the consequences of their intentional ranking decisions,” meaning that practices such as engagement-based ranking would be evaluated for the incendiary or violent content they promote above more mundane content. If Facebook is choosing to promote content which damages mental health or incites violence, Haugen’s vision of Section 230 would hold them accountable. This change would not hold Facebook responsible for user-generated content, only the promotion of harmful content.

Both have also called for a third-party body to be created by the legislature which provides oversight on platforms like Facebook.

Haugen asks that this body be able to conduct independent audits of Facebook’s data, algorithms, and research and that the information be made available to the public, scholars and researchers to interpret with adequate privacy protection and anonymization in place. Beside taking into account the size and scope of the platforms it regulates, Zuckerberg asks that the practices of the body be “fair and clear” and that unrelated issues “like encryption or privacy changes” are dealt with separately.

With reporting from Riley Steward

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Section 230

Repealing Section 230 Would be Harmful to the Internet As We Know It, Experts Agree

While some advocate for a tightening of language, other experts believe Section 230 should not be touched.

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Rep. Ken Buck, R-Colo., speaking on the floor of the House

WASHINGTON, September 17, 2021—Republican representative from Colorado Ken Buck advocated for legislators to “tighten up” the language of Section 230 while preserving the “spirit of the internet” and enhancing competition.

There is common ground in supporting efforts to minimize speech advocating for imminent harm, said Buck, even though he noted that Republican and Democratic critics tend to approach the issue of changing Section 230 from vastly different directions

“Nobody wants a terrorist organization recruiting on the internet or an organization that is calling for violent actions to have access to Facebook,” Buck said. He followed up that statement, however, by stating that the most effective way to combat “bad speech is with good speech” and not by censoring “what one person considers bad speech.”

Antitrust not necessarily the best means to improve competition policy

For companies that are not technically in violation of antitrust policies, improving competition though other means would have to be the answer, said Buck. He pointed to Parler as a social media platform that is an appropriate alternative to Twitter.

Though some Twitter users did flock to Parler, particularly during and around the 2020 election, the newer social media company has a reputation for allowing objectionable content that would otherwise be unable to thrive on social media.

Buck also set himself apart from some of his fellow Republicans—including Donald Trump—by clarifying that he does not want to repeal Section 230.

“I think that repealing Section 230 is a mistake,” he said, “If you repeal section 230 there will be a slew of lawsuits.” Buck explained that without the protections afforded by Section 230, big companies will likely find a way to sufficiently address these lawsuits and the only entities that will be harmed will be the alternative platforms that were meant to serve as competition.

More content moderation needed

Daphne Keller of the Stanford Cyber Policy Center argued that it is in the best interest of social media platforms to enact various forms of content moderation, and address speech that may be legal but objectionable.

“If platforms just hosted everything that users wanted to say online, or even everything that’s legal to say—everything that the First Amendment permits—you would get this sort of cesspool or mosh pit of online speech that most people don’t actually want to see,” she said. “Users would run away and advertisers would run away and we wouldn’t have functioning platforms for civic discourse.”

Even companies like Parler and Gab—which pride themselves on being unyielding bastions of free speech—have begun to engage in content moderation.

“There’s not really a left right divide on whether that’s a good idea, because nobody actually wants nothing but porn and bullying and pro-anorexia content and other dangerous or garbage content all the time on the internet.”

She explained that this is a double-edged sword, because while consumers seem to value some level of moderation, companies moderating their platforms have a huge amount of influence over what their consumers see and say.

What problems do critics of Section 230 want addressed?

Internet Association President and CEO Dane Snowden stated that most of the problems surrounding the Section 230 discussion boil down to a fundamental disagreement over the problems that legislators are trying to solve.

Changing the language of Section 230 would impact not just the tech industry: “[Section 230] impacts ISPs, libraries, and universities,” he said, “Things like self-publishing, crowdsourcing, Wikipedia, how-to videos—all those things are impacted by any kind of significant neutering of Section 230.”

Section 230 was created to give users the ability and security to create content online without fear of legal reprisals, he said.

Another significant supporter of the status quo was Chamber of Progress CEO Adam Kovacevich.

“I don’t think Section 230 needs to be fixed. I think it needs [a better] publicist.” Kovacevich stated that policymakers need to gain a better appreciation for Section 230, “If you took away 230 You would have you’d give companies two bad options: either turn into Disneyland or turn into a wasteland.”

“Either turn into a very highly curated experience where only certain people have the ability to post content, or turn into a wasteland where essentially anything goes because a company fears legal liability,” Kovacevich said.

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