Reforming Section 230 is the Right Idea—But Not When Done in the Wrong Way for the Wrong Reasons

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In the ongoing war between US President Trump and Twitter over Twitter’s actions to fact-check one or two of the President’s more truth-stretching tweets, Trump has unveiled his chosen weapon to teach the social media platform a lesson. He is proposing to reinterpret elements of Section 230 of the Communications Decency Act of 1996. (I’ll explain the significance of this in a minute). When Twitter first added a “contextual label” to Trump’s assertions that mail-in ballots equated to fraudulent voting, directing readers to alternate interpretations (specifically to the Washington Post and CNN, both among the major bêtes noires of the media world as far as Trump is concerned), Trump threatened (on Twitter of course) to “strongly regulate” or “close…down” tech giants that “silence conservative voices”.

On May 28, he issued an Executive Order designed to try to exert control over social media companies in several ways, the most draconian of which would be to reinterpret Section 230 so that if an online platform engages in any editing or restricting of content posted by users, this will make it a “publisher” of such material and open it to potential legal liability. Although Donald Trump in his role as President of the United States cannot be sued for defamation for any action taken in the exercise of his responsibilities (such as communicating to the public), it would appear that if this proposal becomes law platforms like Twitter could nonetheless be exposed to legal liability for the defamatory comments of the President if they fact checked them! That’s unlikely to happen, however, as the intent of the law is clear, and Trump by himself cannot change the law. Section 230 does just the opposite of what is proposed in the Executive Order by giving platforms immunity from liability if, in good faith, they remove material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such content is constitutionally protected”. According to Section 230, taking such action will not put the platforms in the position of becoming the publisher of the material by virtue of exercising editorial judgement.

So far Twitter has not removed anything posted by Trump, but according to the law it has the explicit power, indeed the responsibility, to do so if comments fall into any of the above categories. However Section 230 is not just about removing objectionable content. In the way that it has been interpreted by US courts since it became law almost 25 years ago, it also provides internet platforms with immunity from legal liability if they do not remove content because, according to this law, they are not considered publishers of the material (unless they control the content put up on the platform). In this respect, Section 230 has been described as both a sword and a shield. The sword is the ability to take down objectionable content; the shield is immunity from prosecution for doing so, as well as not being responsible for the content posted by users.

Unfortunately it is the shield aspect of the legislation that has been most often invoked by internet platforms, allowing them to ignore all sorts of abusive material on their sites on the basis that they are merely passive bulletin boards, and not responsible for content posted by others. Thus hate speech, content promoting terrorism and violence, revenge porn, sex trafficking, and so on has been allowed to proliferate on the internet with no legal recourse against the platforms providing access to the material. In some cases, platforms have had no incentive to remove access to objectionable material because they have been able to monetize it by attracting consumer eyeballs and thus advertisers. The website Backpage, which was eventually shut down after Congress passed targeted legislation carving sex trafficking  content out of Section 230 immunity, was a good example of how the original intent of Section 230 had become distorted over the years as a result of numerous court rulings.

Backpage was a classified ad online service, a bit like Craig’s List, except that it had a section offering “adult services”, which allegedly knowingly allowed and encouraged users to post ads related to prostitution and human trafficking, particularly involving minors. It was alleged by state prosecutors that as much as 99% of Backpage’s revenues came from these sources, and that the company was failing to cooperate in curtailing illegal activity. However, despite strong evidence that Backpage actively participated in promoting the website as a sex clearing house, several claims against it were dismissed by US courts on the basis of the immunities provided by Section 230.

As a result of these types of abuses, there has been a strong push for reform of Section 230 by, among others, members of the copyright community who would like to see internet intermediaries act responsibly and exercise a greater degree of (or indeed any) control over any content that they host, distribute or enable. (This is despite the fact that Section 230 explicitly carves copyright infringement out of the immunity provided. That issue is dealt with in separate legislation, the DMCA.) If the content industries have serious reservations about how Section 230 has been used, the tech industry, social media and internet intermediaries love it and have fought tooth and nail against any suggestion of reform. Silicon Valley has gone so far as to push the US Trade Representative (USTR) to seek Section 230-like immunities for internet platforms in trade agreements negotiated by the United States. As a result, the new NAFTA (USMCA/CUSMA) contains Article 19.17, a key element of which reads as follows:

“…no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information”.

In plain English, for “interactive computer service” read social media platform, search engine or internet bulletin board and for “information content provider” read publisher.

This provision has been controversial in both Canada and the US. As I have written elsewhere (“Did Canada get “Section 230” Shoved Down its Throat in the USMCA?”), the final text does not require Canada to provide any new immunities for internet intermediaries as existing Canadian law–including secondary liability–will continue to apply, although there is a potential restraint on enacting new legislation that could treat platforms as publishers. In the US, there was an eleventh hour move to have Article 19.17 dropped from the text of the USMCA when Democrats reviewed changes they wanted to see made before they would agree to ratification in Congress. In the end, unfortunately in my view, Article 19.17 remained as House Speaker Nancy Pelosi expressed regrets that she had moved too late on this issue. It should never have been included in the USMCA, or any other trade agreement, given that one of the main objectives of the tech industry was to limit the ability of Congress to amend Section 230 in future as it would have become a treaty obligation. In a furious last-ditch campaign to keep Article 19.17 in the Agreement, the US tech industry went on record to concede that inclusion in the USMCA/CUSMA did not in fact prevent Congress from making future changes. Worth noting is that USMCA/CUSMA is scheduled to come into force on July 1 of this year, all three countries having now completed the ratification process.

It will be interesting to see if President Trump’s threat to modify Section 230 in order to punish Twitter will run into any legal issues as a result of US commitments under the USMCA. While that is theoretically possible (although the US could choose to ignore its obligations under the Agreement on this one point, and would likely not be challenged by either Canada or Mexico), this is unlikely to arise as there is little likelihood that Trump will get his way on Section 230. His request that the Federal Communications Commission (FCC) take action to determine whether social media platforms are acting in good faith (and thus qualify for immunity from liability) runs head on into considerations related to the First Amendment of the US Constitution, which guarantees freedom of speech, and is a real stretch. More particularly, the use of an Executive Order to bypass the will of Congress expressed through legislation is fraught with challenges.

It is not just the political process that is a problem. Trump has decided to use Section 230 in order to take personal revenge on Twitter, not to reform it or to address the fundamental issues inherent in the abuse of its immunity provisions by internet intermediaries who have used it to avoid taking down clearly harmful content. By making this allegedly about “silencing conservative voices”, Trump has in effect hijacked the issue of Section 230 reform. As copyright blogger David Newhoff put it in his aptly titled piece on this issue, What Happens When the Biggest Troll on Twitter is the President?”;

“The EO (Executive Order) itself may be a worthless piece of paper Trump signed to make himself and a few of his fans feel good, but now that he’s stamped his brand of partisanship on this narrative, one can imagine any number of ways this non-partisan discussion can become needlessly mired in the muck. As mentioned, I can certainly imagine the (tech) industry using this story as leverage to stymie legitimate review.”

There is a real risk that meaningful and needed reform of Section 230 to make platforms more accountable for harmful content they host or distribute will become conflated with the highly partisan political debate taking place in the run up to the US election in the fall, clouding the real issues and leading to no action at all.

It is ironic to see Trump, who has apparently made over 52,000 tweets since becoming President and who reportedly has over 80 million followers, get into a head-butting confrontation with Twitter. The US journal The Atlantic’s take on this was that, “The president’s two strongest instincts stand pitted against each other: his need for attention and his need to punish enemies.”

Meanwhile Canadians (and Mexicans), who each have an indirect stake in this debate given the inclusion of Article 19.17 in the new NAFTA, will sit on the sidelines and watch this debate play out in Washington. Even if the USMCA is not directly engaged, reform of Section 230 to make internet platforms in the US more responsible for the harms created by the content that they distribute or enable would be a step toward greater accountability. It would be in line with Canada’s announced intent to require social media platforms to remove illegal content within 24 hours or face significant penalties. Appropriate Section 230 reform would be welcome and is certainly needed, but it should be done in the right way and for the right reasons. Punishing Twitter for fact-checking is not one of them.

© Hugh Stephens, 2020. All Rights Reserved.

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