David A. Windham thumbnail

Section 230

I’d like to share my take on Section 2301 because it came up again while I was watching the congressional hearings on the stock market volatility. The Wall Street Journal had the best opening line on it with “It turns out a congressional hearing aimed partly at investigating stock-pumping on the internet is a great opportunity for, well pumping stocks on the internet”2.  I really enjoyed the testimony3 from Keith Gill (“Roaring Kitty” aka DFV )4. The whole thing just reminded me of the early days of internet pump and dump spam schemes revisited and the fact that again, folks are publicly asking about how internet communications are having an effect on our society. Although I didn’t have any personal financial interest, I was pulling for the Wall Street Bets crowd because I was more interested in the power of communication medium.  When Section 230 was mentioned during the hearings, it just reminded me of the other recent debates encircling the law so I’ve been thinking a good bit about it and making some mental notes. 

First off, let me say that I think the actual bad part of the Telecommunications Act of 19965 was not Section 230. It was Title III Sec. 303, the law that deregulated media cross-ownership.  Supporters of the law implied that it would create more competition, but in reality all it really did create more media concentration, less diversity, and higher prices. It’s why a handful of companies own almost all local radio and television stations.  That’s an essay for another time and for now I just want to focus on Section 230. 

It’s Title V, and particularly Sec. 230 that’s been making the news. It states:

“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”.

And with those words, the the majority of the modern internet and social media flourished because it allowed platforms to host user generated content without liability to the content. The reason it’s such a hot topic item now is the fallout from the foreign interference in the 2016 United States elections6, the subsequent online information war about the 2020 elections, and the recent banning of some users. There have been several bills introduced in an effort to remove section 230 protections. What it really emphasizes is how powerful our online communications have become. It’s no surprise that the same communication platforms responsible for the Arab Spring would also be responsible for meddling in elections and so on. I’m a moderate on it and can easily see both sides of the argument. However, I still firmly believe that a private company such as Twitter can set their usage guidelines however they see fit and removing the liability protections of section 230 will do very little to change those policies while filling the courts with libel cases.   

I’ve only had a couple real life experiences with section 230. I learned quite some time ago how pitiful folks can act when they keyboard warrior7 behind a screen. I saw this up close when used to manage a bunch of daily newspapers with user commenting enabled. I kept wondering to myself why people could be so rude with their comments and my explanation to myself was that folks were just miserable out there. I often wondered why we even offered comments on the articles and I suggested to the upper brass that we only provide social sharing links so that folks could discuss their opinions elsewhere which many publications now do. The only clever thing that came out of dealing with those comment sections were that we designed a system that allowed us to ‘black hole’ an offensive commenter where we would still allow them to comment, but only show the comment to that particular user.  It stopped the offender from just creating a new account by giving them the impression that their comments were being published.  I also had a bit of real world experience more recently when my home owners association decided to send out an email stating that buses of protesters were coming to upscale neighborhoods. I checked with the management, my cousin in law enforcement, and with some others in the community to try and find the source of this information. Sure enough it originated on social media and spread like any other rumor does. I took the time to track down the original source of the information in a tweet from an account likely run from an overseas misinformation farm. The Twitter account in question had actually posted two contradictory tweets. One was that rioters were being bussed to Greenwood, South Carolina and the second was that the local police would be putting snipers on rooftops. This was widely documented to have happened all across the US8. The most distressing part of it was how rapidly this misinformation could spread around a small town without anyone ever really verifying the source of the information and literally landing in my inbox alongside of all of my neighbors. It’s for exactly this reason, that I’ve primarily abandoned social media. 

Social media companies could be held liable for their users postings without the protections afforded by Section 230. If I slandered someone on this website and then had the top search result for that person, I’d certainly expect to receive a cease and desist. But let’s say I slandered someone over the teleconference call. Does that mean that the telephone provider should be held liable? Section 230 does not preclude providers from hosting anything that violates state of federal law, so the current debate really revolves around issues of civil liabilities. The impetus for which revolved around pornography because at the time it was passed, Congress was preparing the Communications Decency Act (CDA)9 which was challenged by the Supreme Court and removed all of the anti-indecency sections of the CDA and left Sections 230 as law. The major conflicting issues about Section 230 primarily revolve around exceptions to free speech not protected by the First Amendment.  I think the most pertinent current topic related to Section 230 is disinformation, or as is written in the First Amendment, false statements of fact10. The supreme court has established a complex framework for determining which types of statements are unprotected. Essentially Section 230 has provided a shield to providers from libel and slander laws. Although I’d like to think it’s our own responsibility to verify sources of information, it’s become abundantly clear that a large swath of the population is unable to do so given the relatively complex nature of internet communications mediums. I believe that it is the responsibility of our laws to protect the majority of our citizens. And with Section 230, I think it’s the responsibility to moderate content that isn’t protected under the First Amendment11, particularly threats of violence, hate speech, child pornography, copyright, and false statements of fact. 

I do not think we should remove Section 230. I think instead, that lawmakers and elected officials should focus on the end users and not the medium. They could do so by explicitly adding another provision stating such and giving them the rights to user discovery. There are two tricky parts to this. The first is that so much of the disinformation and other exceptions to free speech not protected by the First Amendment are not being created by our own citizens held accountable by our laws.  The second is that in order to focus on the content creator and not the medium, we face issues removing privacy protections. It’s my opinion that if you violate the law in a way that hurts others, that you should lose your privilege to privacy.  The provision should be written in an attempt to stop providers from shielding the identities of those who could be sued or prosecuted. Without being very carefully crafted this could have a chilling effect12 on privacy rights for other users.  

So here we have the same folks saying that social media companies like Facebook are taking away their rights to First Amendment speech while they simultaneously consuming a rapid spread of disinformation that is clearly not protected by the First amendment. It’s a mess. I’ve tried to think of some clever ways to deal with this which don’t infringe on our rights to privacy or free speech. My personal approach has been simply to not participate in social media, but I don’t think my drop out attitude is a real solution for the majority of our citizens and it needs to be addressed by the law.  As far as the law is concerned, I’m leaning towards the idea that social media companies should have the legal responsibility to moderate user generated content that isn’t protected by the First Amendment in which they have recently shown a propensity towards. I also think that we need a more robust legal mechanism of discovery to reveal users that break the law.  I believe that the only real solutions are going to happen over a generation by educating the citizens as to the usage of the internet, their rights to privacy, and free speech online. I think we’re just now seeing the first real effects of a communications revolution where the laws are trying to play catch up. And yet, here I am keyboard warrior’ing on about my opinions with very little knowledge of the law, just like everyone else on the internet. 

  1. Section 230 – https://en.wikipedia.org/wiki/Section_230 
  2. On YouTube, GameStope Hearing Just Another Pumping Opportunity – Wall Street Journal – https://www.wsj.com/articles/on-youtube-gamestop-hearing-just-another-pumping-opportunity-11613746504 
  3. Testimony of Keith Patrick Gill Before the U.S. House Committee on Financial Services – https://docs.house.gov/meetings/BA/BA00/20210218/111207/HHRG-117-BA00-Wstate-GillK-20210218.pdf 
  4. Keith Gill – https://en.wikipedia.org/wiki/Keith_Gill_(investor)
  5. Telecommunications Act of 1996 – https://en.wikipedia.org/wiki/Telecommunications_Act_of_1996
  6. Russian interference in the 2016 United States elections – https://en.wikipedia.org/wiki/Russian_interference_in_the_2016_United_States_elections
  7. Keyboard Warrior – https://en.wiktionary.org/wiki/keyboard_warrior
  8. Antifa Rumors Spread on Local Social Media with no Evidence – https:/www.nbcnews.com/tech/tech-news/antifa-rumors-spread-local-social-media-no-evidence-n1222486
  9. Communications Decency Act – https://en.wikipedia.org/wiki/Communications_Decency_Act 
  10. False Statements of Fact – https://en.wikipedia.org/wiki/False_statements_of_fact 
  11. United States free speech exceptions – https://en.wikipedia.org/wiki/United_States_free_speech_exceptions 
  12. Chilling Effect – https://en.wikipedia.org/wiki/Chilling_effect 

24/01/31 – I’m watching the Senate Judiciary Committee when my representative, the Chair Lindsey Graham addresses Mark Zuckerberg saying “you have blood on your hands, you have a product that is killing people” – https://www.c-span.org/video/?c5104614

While I agree that social media has been harmful to some children, I don’t think legislation will be the singular answer and they haven’t changed my opinion on Section 230. The internet is larger than ‘social media’ and they seemed to be asking these companies to police not only the internet but society itself. I didn’t think it would drastically change my opinions on it, but I do enjoy watching these folks debate the issues in a public forum. Zuck has gotten better and Evan Spiegel of Snapchat was the standout.