Internet social-media platforms are granted broad safe harbor protections against legal liability for any content users post on their platforms. Those protections, spelled out in Section 230 of the 1996 Communications Decency Act (CDA), were written a quarter century ago during a long-gone age of nave technological optimism and primitive technological capabilities. So much has changed since the turn of the century that those protections are now desperately out of date. Its time to rethink and revise those protections and for all leaders whose companies rely on internet platforms to understand how their businesses might be affected.
Social-media platforms provide undeniable social benefits. They gave democratic voice to oppressed people during the Arab Spring and a platform for the # MeToo and #BlackLivesMatter movements. They helped raise $115 million for ALS with the Ice Bucket Challenge, and they helped identify and coordinate rescue for victims of Hurricane Harvey.
But weve also learned just how much social devastation these platforms can cause, and that has forced us to confront previously unimaginable questions about accountability. To what degree should Facebook be held accountable for the Capitol riots, much of the planning for which occurred on its platform? To what degree should Twitter be held accountable enabling terrorist recruiting? How much responsibility should Backpage and Pornhub bear for facilitating the sexual exploitation of children? What about other social-media platforms that have profited from the illicit sale of pharmaceuticals, assault weapons, and endangered wildlife? Section 230 just didnt anticipate such questions.
Section 230 has two key subsections that govern user-generated posts. The first, Section 230(c)(1), protects platforms from legal liability relating to harmful content posted on their sites by third parties. The second, Section 230(c)(2), allows platforms to police their sites for harmful content, but it doesnt require that they remove anything, and it protects them from liability if they choose not to.
These provisions are good except for the parts that are bad.
The good stuff is pretty obvious. Because social-media platforms generate social benefits, we want to keep them in business, but thats hard to imagine if they are instantly and irreversibly liable for anything and everything posted by third parties on their sites. Section 230(c)(1) was put in place to address this concern.
Section 230(c)(2), for its part, was put in place in response to a 1995 court ruling declaring that platforms who policed any user generated content on their sites should be considered publishers of and therefore legally liable for all of the user-generated content posted to their site. Congress rightly believed that ruling would make platforms unwilling to police their sites for socially harmful content, so it passed 230(c)(2) to encourage them to do so.
At the time, this seemed a reasonable approach. But the problem is that these two subsections are actually in conflict. When you grant platforms complete legal immunity for the content that their users post, you also reduce their incentives to proactively remove content causing social harm. Back in 1996, that didnt seem to matter much: Even if social media platforms had minimal legal incentives to police their platform from harmful content, it seemed logical that they would do so out of economic self-interest, to protect their valuable brands.
Lets just say weve learned a lot since 1996.
One thing weve learned is that we significantly underestimated the cost and scope of harm that posts on social-media can cause. Weve also learned that platforms dont have strong enough incentives to protect their brands by policing their platforms. Indeed, weve discovered that providing socially harmful content can be economically valuable to platform owners while posing relatively little economic harm to their public image or brand name.
Today there is a growing consensus that we need to update Section 230. Facebooks Mark Zuckerberg even told Congress that it may make sense for there to be liability for some of the content, and that Facebook would benefit from clearer guidance from elected officials. Elected officials, on both sides of the aisle, seem to agree: As a candidate, Joe Biden told the New York Times that Section 230 should be revoked, immediately, and Senator Lindsey Graham (R-SC) has said, Section 230 as it exists today has got to give. In an interview with NPR, the former Congressmen Christopher Cox (R-CA), a co-author of Section 230, has called for rewriting Section 230, because the original purpose of this law was to help clean up the Internet, not to facilitate people doing bad things.
How might Section 230 be rewritten? Legal scholars have put forward a variety of proposals, almost all of which adopt a carrot-and-stick approach, by tying a platforms safe-harbor protections to its use of reasonable content-moderation policies. A representative example appeared in 2017, in a Fordham Law Review article by Danielle Citron and Benjamin Wittes, who argued that Section 230 should be revised with the following (highlighted) changes: No provider or user of an interactive computer service that takes reasonable steps to address known unlawful uses of its services that create serious harm to others shall be treated as the publisher or speaker of any information provided by another information content provider in any action arising out of the publication of content provided by that information content provider.
This argument, which Mark Zuckerberg himself echoed in testimony he gave to Congress in 2021, is tied to the common law standard of duty of care, which the American Affairs Journal has described as follows:
Ordinarily, businesses have a common law duty to take reasonable steps to not cause harm to their customers, as well as to take reasonable steps to prevent harm to their customers. That duty also creates an affirmative obligation in certain circumstances for a business to prevent one party using the businesss services from harming another party. Thus, platforms could potentially be held culpable under common law if they unreasonably created an unsafe environment, as well as if they unreasonably failed to prevent one user from harming another user or the public.
The courts have recently begun to adopt this line of thinking. In a June 25, 2021 decision, for example, the Texas Supreme Court ruled that Facebook is not shielded by Section 230 for sex-trafficking recruitment that occurs on its platform. We do not understand Section 230 to create a lawless no-mans-land on the Internet, the court wrote. Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that Section 230 does not allow it. Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking.
The duty-of-care standard is a good one, and the courts are moving toward it by holding social media platforms responsible for how their sites are designed and implemented. Following any reasonable duty-of-care standard, Facebook should have known it needed to take stronger steps against user-generated content advocating the violent overthrow of the government. Likewise, Pornhub should have known that sexually explicit videos tagged as 14yo had no place on its site.
Not everybody believes in the need for reform. Some defenders of Section 230 argue that as currently written it enables innovation, because startups and other small businesses might not have sufficient resources to protect their sites with the same level of care that, say, Google can. But the duty-of-care standard would address this concern, because what is considered reasonable protection for a billion-dollar corporation will naturally be very different from what is considered reasonable for a small startup. Another critique of Section 230 reform is that it will stifle free speech. But thats simply not true: All of the duty-of-care proposals on the table today address content that is not protected by the First Amendment. There are no First Amendment protections for speech that induces harm (yelling fire in a crowded theater), encourages illegal activity (advocating for the violent overthrow of the government), or that propagates certain types of obscenity (child sex-abuse material).
Technology firms should embrace this change. As social and commercial interaction increasingly move online, social-media platforms low incentives to curb harm are reducing public trust, making it harder for society to benefit from these services, and harder for legitimate online businesses to profit from providing them.
Most legitimate platforms have little to fear from a restoration of the duty of care. Much of the risk stems from user-generated content, and many online businesses host little if any such content. Most online businesses also act responsibly, and so long as they exercise a reasonable duty of care, they are unlikely to face a risk of litigation. And, as noted above, the reasonable steps they would be expected to take would be proportionate to their services known risks and resources.
What good actors have to gain is a clearer delineation between their services and those of bad actors. A duty of care standard will only hold accountable those who fail to meet the duty. By contrast, broader regulatory intervention could limit the discretion of, and impose costs on, all businesses, whether they act responsibly or not. The odds of imposing such broad regulation increase the longer harms from bad actors persist. Section 230 must change.
Go here to read the rest:
It's Time to Update Section 230 - Harvard Business Review
- Trump: First Amendment protects efforts to overturn election - USA TODAY - March 29th, 2024 [March 29th, 2024]
- To Fight Ban Bill, TikTok's Best Hopes Lie in First Amendment Challenge - The Information - March 29th, 2024 [March 29th, 2024]
- Supreme Court must rely on the First Amendment, not its own precedent, when deciding government censorship case - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- FIRST AMENDMENT VIOLATION?: Man removed from Cape council meeting files lawsuit - FOX 4 News Fort Myers WFTX - March 29th, 2024 [March 29th, 2024]
- Trump team's First Amendment argument is 'so weak' in Georgia election interference case - MSNBC - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - The Associated Press - March 29th, 2024 [March 29th, 2024]
- A national TikTok ban and the First Amendment - National Constitution Center - March 29th, 2024 [March 29th, 2024]
- Trump attorney says Georgia election case hinges on First Amendment Deseret News - Deseret News - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - The Atlanta Journal Constitution - March 29th, 2024 [March 29th, 2024]
- Courts Should Affirm First Amendment Rights of Youths in the Digital Age: The Case for a 21stCentury Tinker - Cato Institute - March 29th, 2024 [March 29th, 2024]
- Trump legal news brief: Prosecutors tell Judge McAfee that First Amendment doesn't apply to Trump's 'criminal intentions' - Yahoo! Voices - March 29th, 2024 [March 29th, 2024]
- Trump attorney tries to have Georgia case dismissed on First Amendment grounds - MSNBC - March 29th, 2024 [March 29th, 2024]
- Trump attorney, prosecutors spar over move to have Georgia case dismissed on First Amendment grounds - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Donald Trump Georgia court motions hearing today live stream - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - Bowling Green Daily News - March 29th, 2024 [March 29th, 2024]
- First Amendment protects Trump from Fani Williss election interference charges, attorney argues - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- Judicial Rulemaking and Lucidity: Justice Barrett's First Amendment Opinion in Lindke v. Freed - American Enterprise Institute - March 29th, 2024 [March 29th, 2024]
- First Amendment protects Trump from Fani Willis's election interference charges, attorney argues - Colorado Springs Gazette - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting election interference charges - Southernminn.com - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - messenger-inquirer - March 29th, 2024 [March 29th, 2024]
- Lawyers for the State argue against Trump First Amendment challenge in Georgia case - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- OPINION: The possible TikTok ban is an infringement on our First Amendment rights - The Suffolk Journal - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - Times Daily - March 29th, 2024 [March 29th, 2024]
- An iPhone, YouTube & the First Amendment: Man in St Louis tests boundaries of constitution through videos - First Alert 4 - March 29th, 2024 [March 29th, 2024]
- Lawyer argues Georgia election RICO case against Trump be dismissed over First Amendment - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Abridging, Not Coercing, Is The First Amendment's Yardstick for Speech Violations - Reason - March 29th, 2024 [March 29th, 2024]
- Judge hears Trump's First Amendment challenge to Georgia charges: Watch live - Yahoo Singapore News - March 29th, 2024 [March 29th, 2024]
- Trump's attorney says election inference case should be thrown out over 1st Amendment protections - Yahoo! Voices - March 29th, 2024 [March 29th, 2024]
- Judge hears Trump's First Amendment challenge to Georgia charges: Watch live - AOL - March 29th, 2024 [March 29th, 2024]
- Judge sets new hearing date in 2020 Georgia election interference case - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Biden Wants To Avoid a First Amendment Showdown Over WikiLeaks - Reason - March 22nd, 2024 [March 22nd, 2024]
- Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment 'hamstrings' government - Fox News - March 22nd, 2024 [March 22nd, 2024]
- West Texas drag show becomes a First Amendment battleground - The Texas Tribune - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Associated Press - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment, the Fourth Amendment, and Substantial Encouragement - Reason - March 22nd, 2024 [March 22nd, 2024]
- News/Media Alliance Joins Brief Defending First Amendment Editorial Rights of Documentarians - News/Media Alliance - March 22nd, 2024 [March 22nd, 2024]
- The State of the First Amendment: Free Speech - University of Colorado Boulder - March 22nd, 2024 [March 22nd, 2024]
- Justices Seem Likely to Side With N.R.A. in First Amendment Dispute - The New York Times - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court Justice Kavanaugh loses patience with the judiciarys far right - Vox.com - March 22nd, 2024 [March 22nd, 2024]
- Justice Jackson ripped for worrying about the First Amendment 'hamstringing' government: 'Literally the point' - Fox News - March 22nd, 2024 [March 22nd, 2024]
- Analysis: SCOTUS Oral Arguments Bode Well For NRA First Amendment Claim [Member Exclusive] - The Reload - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear First Amendment challenge to New York's financial 'blacklisting' of NRA - Fox News - March 22nd, 2024 [March 22nd, 2024]
- NRA Goes To The Supreme Court Today In First Amendment CaseHere's What To Know - Forbes - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear case of former Castle Hills councilwoman who claims First Amendment rights were violated - KSAT San Antonio - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear arguments in key First Amendment case challenging Biden admin teamwork with Big Tech - Fox News - March 22nd, 2024 [March 22nd, 2024]
- "Black Lives Mat[t]er" + "Any Life" Drawing "Not Protected by the First Amendment" in First Grade - Reason - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - KXLY Spokane - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court hears free speech case that united the NRA and the ACLU - The Washington Post - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court Wary of States' Bid to Limit Federal Contact With Social Media Companies - The New York Times - March 22nd, 2024 [March 22nd, 2024]
- Opinion: A First Amendment Fizzle at the U.S. Supreme Court - The Atlanta Journal Constitution - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment is under attack in Americas Oceania - Washington Examiner - March 22nd, 2024 [March 22nd, 2024]
- Education Institutions Grapple With Overlap of First Amendment and Anti-Discrimination Laws - JD Supra - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Caledonian-Record - March 22nd, 2024 [March 22nd, 2024]
- Note to Justice Jackson: First Amendment Should Hamstring Biden - Daily Signal - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - KEYT - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment Supreme Court case right wingers are crazy for - The Independent - March 22nd, 2024 [March 22nd, 2024]
- Ketanji Brown Jackson concerned First Amendment is hamstringing government from censorship - Washington Examiner - March 22nd, 2024 [March 22nd, 2024]
- Justice Jackson: First Amendment "Hamstringing" Federal Response To "Threatening Circumstances, From The ... - RealClearPolitics - March 22nd, 2024 [March 22nd, 2024]
- Opinion: Sen. Chuck Grassley should stand up for the First Amendment and support the PRESS Act - The Gazette - March 18th, 2024 [March 18th, 2024]
- The Supreme Court must protect the First Amendment in Murthy v. Missouri - Washington Examiner - March 18th, 2024 [March 18th, 2024]
- A Hillsborough judge invokes the First Amendment in a case related to a 2022 election campaign - WMNF - March 18th, 2024 [March 18th, 2024]
- John Stockton's lawyer claims first amendment violation as basis for COVID-19 lawsuit - KXLY Spokane - March 18th, 2024 [March 18th, 2024]
- Scientology Scores A First Amendment Win Over Leah Remini, But Harassment Claims Against Church Still Stand, Judge Rules - Deadline - March 18th, 2024 [March 18th, 2024]
- Supreme Court to hear First Amendment cases, weigh in on Texas immigration law - MSN - March 18th, 2024 [March 18th, 2024]
- 7 Expert Takeaways As the Supreme Court Considers Government Influence on Content Moderation - Just Security - March 18th, 2024 [March 18th, 2024]
- Conflict between First Amendment and discrimination on Broadway | Strictly Legal - The Cincinnati Enquirer - March 18th, 2024 [March 18th, 2024]
- Maryland fraternities petition federal judge - Baltimore Sun - March 18th, 2024 [March 18th, 2024]
- Supreme Court to debate whether White House crosses First Amendment line on social media disinformation - News-Press Now - March 18th, 2024 [March 18th, 2024]
- Broadway Actors Race Discrimination Claims Sent Back to the Underworld in the Face of Producers First Amendment ... - JD Supra - March 18th, 2024 [March 18th, 2024]
- Congress Should Give Up on Unconstitutional TikTok Bans - EFF - March 18th, 2024 [March 18th, 2024]
- U.S. House Votes in Favor of TikTok Ban Bill Amid First Amendment and Other Questions - Democracy Now! - March 18th, 2024 [March 18th, 2024]
- Review of Amicus Briefs Filed in Murthy v. Missouri Before the Supreme Court | TechPolicy.Press - Tech Policy Press - March 18th, 2024 [March 18th, 2024]
- Supreme Court defines when it's illegal for public officials to block social media critics - The Verge - March 18th, 2024 [March 18th, 2024]
- Doctor sues state of WA for his First Amendment rights - KXLY Spokane - March 18th, 2024 [March 18th, 2024]
- ACLU To Defend NRA as Supreme Court Weighs Whether New York Violated Gun Group's First Amendment Rights - The New York Sun - March 18th, 2024 [March 18th, 2024]
- U.Va. alumna settles First Amendment lawsuit against the University after her expulsion in abeyance - University of Virginia The Cavalier Daily - March 2nd, 2024 [March 2nd, 2024]
- The Oregonian/OregonLive wins First Amendment ruling in Nike documents case - OregonLive - March 2nd, 2024 [March 2nd, 2024]
- Progressive attacks on the US constitution escalate - UnHerd - March 2nd, 2024 [March 2nd, 2024]
- Artificial intelligence: Tennessee ELVIS Act threatens First Amendment - Tennessean - March 2nd, 2024 [March 2nd, 2024]
- Eighth Circuit: Fun With the First Amendment - Law.com - March 2nd, 2024 [March 2nd, 2024]