#communicationsdecencyact

The future of online expression, as it’s currently understood, could come down to five hours of oral arguments held in the Supreme Court’s chambers this week. Justices heard from lawyers both attacking and defending Big Tech’s strongest legal shield: Section 230 of the Communications Decency Act. Read more…

This week, the Supreme Court is hearing two cases that could upend the way we’ve come to understand freedom of speech on the internet. Both Gonzalez v. Google and Twitter v. Taamneh ask the court to reconsider how the law interprets Section 230, a regulation that protects companies from legal liability for… Read more…

The Supreme Court’s ruling on a pair of ISIS terrorism cases this week will rest on the nine justices’ interpretation of 26 words written in 1996 that collectively have come to define the nature and scope of modern online expression. The ruling could fundamentally alter the types of content social companies are held… Read more…

Where does Wikipedia, the world’s most-visited repository of information on the internet, stand without guaranteed digital liability protections? It’s a question weighing heavy on the people who make up the Wikimedia Foundation, the nonprofit organization that administers the site containing 58 million articles in… Read more…

Last week, Joe Biden wrote an opinion piece in the Wall Street Journal calling for Congress to pass legislation that would regulate large tech companies. In the essay, titled, “Republicans and Democrats, Unite Against Big Tech Abuses,” he specifically rejoins Congress to reform Section 230 of the Communications… Read more…

The Supreme Court is about to decide the future of the internet.

The court this week agreed to hear a case involving Section 230 of the Communications Decency Act, which shields internet providers from lawsuits over material posted online by users. The law “helped enable the rise of huge social networks like Facebook and Twitter,” reports The New York Times, by making certain they could not get sued each time a user posted something false or inflammatory.

However Section 230 “has come under heavy scrutiny from the right and the left in recent years,” NBC News reports, “with conservatives claiming that companies are inappropriately censoring content and liberals saying social media companies are spreading dangerous right-wing rhetoric.” What will happen to the internet if Section 230 goes away? Here is all the things you should know:

What’s Section 230?

It is “one of the most valuable tools for protecting freedom of expression and innovation on the internet,” according to the Electronic Frontier Foundation. That is a bit ironic, because the goal of the Communications Decency Act was originally designed to prevent young kids from encountering obscene materials in what was then known as “cyberspace.” However Section 230 of the law additionally held that “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.”

That means the law “protects websites from lawsuits if a user posts something illegal,” Casey Newton wrote for The Verge in 2020. (Practically, it permits YouTube to let millions of users upload and publish videos without worrying about getting sued if one among them posts something out of bounds.) However it additionally provides them the liberty to create their very own moderation guidelines. “This is why Facebook and Twitter ban hate speech, for example, even though it is legally permitted in the United States.”

Supreme Court to hear arguments over YouTube’s liability in terrorist attack

Why do Republicans criticize Section 230?

The short answer: Donald Trump. Since tech companies are empowered under Section 230 to make their own content moderation decisions, they had been protected in early 2021 when the biggest of them — Twitter, Facebook, and others — banned him from their sites within the wake of the Jan. 6 Capitol riot. However Trump was arguing for the repeal of Section 230 even before that, when social media companies began blocking user posts that contained factual inaccuracies about COVID-19 and began posting warning labels on some of his tweets as well. Conservatives have spent the previous few years arguing that “Big Tech” engages in censorship, mostly of conservative viewpoints (although studies show conservatives actually dominate social media). And some GOP-run states, like Florida, have passed laws that prohibit social networks from “deplatforming” candidates for his or her views.

Why do Democrats criticize Section 230?

The short answer: Donald Trump. The Trump Era also led many Democrats to believe social media companies are too lax in allowing hate speech and Big Lies to proliferate. “Generally, Republicans worry that Section 230 gives internet companies too much leeway to suppress what people say online,” the Times summarized last year, whereas Dems believe it offers “companies a pass for failing to effectively stop illegal drug sales or prevent extremists from organizing violence.”

What’s the Supreme Court case about?

Oddly, it is not about Trump in any respect. The case — Gonzalez v. Google LLC — “centers around the family of Nohemi Gonzalez, who was killed in an ISIS terrorist attack in Paris in 2015,” Politico reports. The family says YouTube’s algorithm pushed terror-sympathetic videos that helped encourage the attack. “The question before the court is whether Section 230 grants immunity for suggestions made by algorithms pushing certain content for users or if it only applies to editorial changes — like content removal — made by the platforms.”

It is the first time the Supreme Court will directly consider Section 230, and industry observers are watching to see if justices issue a narrow ruling or something far more expansive. “The entire scope of Section 230 could be at stake, depending on what the Supreme Court wants to do,” Jeff Kosseff, a law professor at the Naval Academy, told TheWashington Post.

What is going to happen if Section 230 falls?

Some observers fret that the Supreme Court would possibly use the case to gut Section 230 completely. “The worst case scenario — Section 230 basically being entirely nullified — would be devastating to countless online platforms and companies,” Devin Coldewey writes for TechCrunch. That is in all probability not likely. However “little changes make a big difference” and even a narrow ruling might end up forcing Twitter, Facebook, and YouTube to change how much freedom they provide users to post. It will not simply be Big Tech companies which are affected, nonetheless. “If the Supreme Court erodes Section 230 immunity, it could create a nightmare scenario not just for Big Tech but for anyone [who] runs a website with user-generated content,” Axios notes. Legally speaking, then, the entire internet could be up for grabs.

Biden Issues Another Vague Call to ‘Reform’ the Internet’s Most Important Law

Since taking the White House in November 2020, President Joe Biden has issued repeated calls to amend one of the most foundational laws governing the internet, Section 230 of the Communications Decency Act. His latest call to do so came Thursday during a “listening session” on tech platform accountability. Read more…

Section 230 of the federal Communications Decency Act facilitates the interactive Internet. It states that “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.”  

In other words, if someone makes a defamatory comment on YouTube, YouTube isn’t responsible.

The law also bars claims that “seek to hold a service provider liable for its exercise of a publisher’s traditional editorial function – such as deciding whether to publish, withdraw, postpone or alter content,” in part so that service providers may block and screen offensive material. (Barrett).  That helps Twitter, Facebook, YouTube, etc. in cases where (mostly pro se) litigants claim their content is targeted and removed.  Advocates say it’s critical in curbing trolls and hate speech.  Critics say it’s censorship.

Most courts interpret Section 230 broadly and such cases are quickly dismissed.  However, activists and large organizations attempt to plead around Section 230 by claiming First Amendment, negligence, and breach of contract violations.  These claims have also largely been dismissed, but in Taylor v. Twitter one judge criticized the broad application.  

The plaintiff, Jared Taylor, owns a publication called American Renaissance. Twitter suspended Taylor’s account because his posts violated Twitter’s terms of use.  Most of the claims were dismissed based on Section 230, but the Superior Court Judge Harold Kahn allowed an Unfair Competition Law (UCL) claim to proceed.  Subsequently, the appeals court directed the judge to explain his decision or dismiss the claim.  

On review Judge Kahn ultimately dismissed the UCL claim, holding that California state courts determine “the practical reality of what the plaintiff sought…rather than the way the plaintiff framed her case.”  But, the judge noted that the complaint against Twitter was not frivolous despite Section 230, given that multiple federal decisions support plaintiffs pleading around Section 230 and the Supreme Court may ultimately adopt the plaintiff view.  He (sarcastically?) explained:

“I went astray in believing until recently that the determinations of whether plaintiffs seek to hold Twitter liable as a publisher and whether plaintiffs’ UCL claim is based on Twitter’s speech or plaintiffs’ own speech are distinct inquiries. …I now realize that these seemingly different issues are actually the same issue, merely expressed in different language.“

That’s either a rare admission of error or an unsubtle way to follow precedent and guide the appellate courts.  

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Section 230 (One may also recall the 2018 public debate around FOSTA and SESTA, which were congressional amendments to Section 230 intended to curb sex trafficking. They led to Craigslist removing its personals page, Facebook revised its Community Guidelines, etc.)

Barrett v. Rosenthal