Section 230

Facebook Welcomes Regulations, Specifically Those That Hurt Its Competition

Tech giants expressing openness to amending Section 230 are doing so out of naked self-interest, not the goodness of their hearts.

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Nick Clegg, Facebook's head of global affairs and communications, appeared on CNN's State of the Union Sunday after a harrowing week for the company. Last week a whistleblower, Frances Haugen, testified before the Senate on a number of topics relating to Facebook's lack of transparency and the potentially deleterious effects on its users. However, Clegg's answer to a question about Section 230, the clause within the Communications Decency Act which generally shields platforms from liability for user-generated content posted to their sites, was perplexing.

When asked by host Dana Bash if he supported "amending Section 230" in order to "hold companies like [Facebook] liable" for certain posts made on their sites, Clegg responded that he did, and recommended "mak[ing] that protection…contingent on them applying…their policies as they're supposed to, and if they fail to do that, they would then have that liability protection removed."

What, exactly, does that mean in practice? "You tell me, because it makes no sense to me," says Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy and author of The Twenty-Six Words That Created the Internet, a book about the history and application of Section 230.

This was not Facebook's first foray into offering ideas about how the government ought to regulate it. For months, Facebook has blanketed the airwaves with ads bemoaning that "there hasn't been a major update to Internet regulations in 25 years." On a dedicated webpage, they list specifics: new standards of transparency, privacy, and data portability, as well as "thoughtful updates" to Section 230, "to make content moderation systems more transparent."

While this sounds magnanimous—a social media juggernaut currently in the hot seat, offering ideas on how best it can be tamed—don't believe the hype.

Lately, Section 230 has been in the crosshairs of both political parties, though for different reasons: Republicans feel that the social media giants censor too much content, while Democrats feel that they do not censor enough. Any fine-tuning of the law would almost certainly never pass such an evenly divided Congress. Besides, the last time Section 230 was amended was with the passage of 2018's Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which has ultimately done more harm than good.

Any potential repeal or revision, however, would likely only serve to insulate Facebook as the world's most popular social media site, as well as to discourage competitors.

"Section 230 was vital to Facebook's creation, and its growth," Kosseff explains, "but now that it's a trillion-dollar company, Section 230 is perhaps a bit less important to Facebook, but it is far more important to smaller sites. Facebook can handle defending a bunch of defamation cases on the merits much more than a site like Yelp or Glassdoor."

Yelp, for example, states in its content moderation section that it forbids "hate speech, bigotry, racism, or similarly harmful language;" however, they also "don't typically take sides in factual disputes." Under a robust Section 230, Yelp is able to maintain that stance without having to worry about being sued over content that users post on the site. Without it, they would risk defamation suits or takedown requests by businesses who get negative reviews; since even the most frivolous lawsuits would require time and money to fight, Yelp may become completely unreliable if businesses are able to pick and choose their own reviews.

Kosseff is not sold on Facebook's regulatory push, saying that "for Facebook to suddenly be the spokesperson for what the standard should be for Section 230 protections is kind of laughable." And indeed, in a situation where Congress decides to either repeal Section 230, or to establish criteria that a site must meet to qualify for its protections, it is worth considering that Facebook would exert an outsized influence in drafting them. Such is the nature of regulatory capture, in which regulatory agencies end up serving the interests of the firms they are supposed to be overseeing.

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  1. Facebook imploding will be a happy day.

    1. Unless FB imploding is what FB or Congress wants. So that fewer smaller corporations can enjoy S230 protections. In which case, we need to bolster S230, the 1A of the internet, so that FB, smaller corporations, and even the internet itself can continue to exist.

      1. It isnt the 1a of the internet large providers are working directly with the government to censor. It is the opposite.

        1. And let me clarify. If a school acts in a political manner and receives federal funds, they can be sued and lose in court.

          Currently most of SV recieves funding from the state but can openly censor in a political manner without subject to lawsuits.

          Again, 230 is not the 1a of the internet.

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      2. One shouldn’t need a 1st amendment of the internet since we have already have the 1st amendment. If that doesn’t do the trick, 230 certainly has no chance.

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    3. Like many other people, I’ve grown weary of general social media’s physical (and often identity) disconnect, through which the ugliest of comments can be and too often are made without consequence for the aggressor. What I find indispensable about social media in general, however, is that it has enabled far greater information freedom than that allowed by what had been a rigidly gatekept news and information virtual monopoly held by the pre-2000 electronic and print mainstream news-media.

      Besides the Black Lives Matter and George Floyd protests, I seriously doubt that Greta Thunberg’s pre-pandemic formidable climate change movement, for example, would’ve been able to regularly form on such a congruently colossal scale if not in large part for the widely accessible posting and messaging systems of Facebook.

      While I don’t know his opinion of social media, in an interview with the online National Observer (posted Feb.12, 2019) Noam Chomsky noted that while the mainstream news-media does publish stories about man-made global warming, “It’s as if … there’s a kind of a tunnel vision — the science reporters are occasionally saying ‘look, this is a catastrophe,’ but then the regular [non-environmental pro-fossil fuel] coverage simply disregards it.”
      ___
      P.S. Contrary to prominent conservative proclamations, I’ve found that social media ‘moderators’ silence progressive voices as much as, if not more than, conservative opinions.

      1. If you’d like to face consequences, simply let us know where to find you.

  2. And indeed, in a situation where Congress decides to either repeal Section 230, or to establish criteria that a site must meet to qualify for its protections, it is worth considering that Facebook would exert an outsized influence in drafting them.

    Awesome. A good, solid “Prices could go up. Unless there’s some unforeseen event, in which case, they could go down.” take from Reason.

    “We’ve got to keep consistently thumbing the scales, unless Facebook wants us to thumb the scales.” is better than “The internet wouldn’t exist if we didn’t have our thumb on the scales!” I guess.

    1. Or it could be simple regulation like “gollow 1a precedence in moderation for legal immunity.”

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  3. Ultimately, this is about the Biden administration, the FTC, Facebook, and Google coming to an arrangement over their antitrust cases–and those arrangements are called “consent decrees”.

    These issues have all been handled before that way–even the free speech issues. This is more or less what happened when the government came after the studio system and they started blacklisting people during the Red Scare, and this is more or less what happened when the government came after the tobacco industry and their ability to advertise.

    The real action on Section 230 won’t happen in Congress–or, at least, it won’t happen until they pass something in harmony with the consent decree that the FTC and Biden’s Justice Department negotiates with Facebook and Google. They’ll extend liability protections (like the ones Facebook wants) under the conditions (that Facebook and Google want) in exchange for both of them conforming to a speech code.

    Because Facebook and Google will be consenting (in exchange for not breaking up their companies up into separate units), it won’t violate the First Amendment. When the times comes for Congress to approve the consent decree, it will be important for libertarians, Independents, and Republicans to support Section 230–because if they don’t, then the only protections for the speech of third parties will come from the consent decree, meaning that every major platform–now or in the future–will need to live by the speech codes the Biden administration negotiates today.

    They want to change Section 230 to mirror the consent decree they’re negotiating so that their competitors, in the future, won’t have an advantage over them by not having to live by the consent decree.

    1. This has all happened before.

      “The Majors allegedly feared that any cigarette manufacturer left out of a settlement (Non-Participating Manufacturers or NPMs) would be free to expand market share [through advertising] or could enter the market with lower prices, drastically altering the Majors’ future profits and their ability to increase prices to pay for the settlement.”

      https://en.wikipedia.org/wiki/Tobacco_Master_Settlement_Agreement#Subsequent_signatories

      Facebook doesn’t want future competitors to have an advantage by not being part of their consent decree with the FTC, and so they want to rewrite Section 230 so that future competitors will be subject to more or less the same treatment that Facebook negotiates for itself in the consent decree. Those who are trying to undermine Section 230 are carrying wood for Facebook, and Facebook is using the wood to build a gallows from which to hang their ability to exercise their free speech rights on social media.

      1. “[through advertising]” shouldn’t have been italicized. It wasn’t part of the original quote–it was an edit by yours truly.

      2. As one who was responsible for defeating then Sen. John McCain’s 1998 tobacco settlement legislation (which was lobbied for by Big Tobacco, by most state AGs and by Big Pharma financed health/medical groups CTFK, ACS, AHA, ALA, AMA) who claimed to be anti tobacco) that would have Congressionally mandated a far worse settlement (which I referred to as the Global Tobacco Bailout), it is important to note that the subsequent Master Settlement Agreement that was negotiated and agreed to by 46 State AGs is administered by 46 states (not the federal government) and was approved by state courts.

        I also was involved in lawsuits to block the Master Settlement Agreement in several states, primarily here in PA, where then State AG Mike Fisher responded by threatening to seize tens of millions of dollars from me (for delaying tobacco settlement payments and interest to PA).

        Although we lost in Philadelphia Common Pleas court (where 45 lawyers showed up in the courtroom representing Big Tobacco and the State of PA, while we had just one pro bono lawyer), our awsuit convinced then PA Governor Mark Schweiker, AG Mike Fisher and the PA General Assembly to enact a law requiring all tobacco settlement money in PA to be spent for public health programs.

        1. So we can all blame you for government public health corruption and regressive taxes on smokers?
          Go fuck yourself and mind your own business.

      3. Those who are trying to undermine Section 230 are carrying wood for Facebook, and Facebook is using the wood to build a gallows from which to hang their ability to exercise their free speech rights on social media.

        Once it was pointed out to me that section 230 is essentially a requirement that the tech companies moderate and censor their platforms, I simply can’t read it any other way. And as mad.Casual has repeatedly noted, it’s a subsection of the communications decency act.

        Basically, when I read the text of the law, it essentially says that the platform will not be held liable for censoring anything anyone anywhere deems “offensive” as long as it’s taken in good faith.

        Even if I’m wrong about section 230, it’s an awfully weird way to describe a free internet where a platform would only be required to remove illegal content (uploaded by a 3rd party or platform member) at the behest of a court order, and not be held liable for the period of time it was up there before it was determined to be illegal.

        1. Regardless of how we look at Section 230, the results of repealing it will be the same–and bad for free speech.

          Because a position can be rationalized, doesn’t mean it should be rationalized, and the underlying principle is the same–regardless of rationalization. And the underlying principle is that people shouldn’t need to defend themselves in court for things they didn’t say. And that principle also remains so regardless of how we look at it.

          If there is nowhere in social media to escape progressive speech codes in the future because they were all forced to sign onto the speech codes in order to survive, then how Section 230 was framed won’t really matter.

          Meanwhile, CNN dropped off the face of the social media, as far as Australia is concerned, because Australian courts did what repealing Section 230 would do. And it truly doesn’t matter how we look at it. CNN left Australia anyway–because they can’t deal with the liability for the comments of their users either from the cost of moderation or a liability perspective. And if CNN can’t operate online discussions of the news on social media without Section 230 like protections, how will smaller websites fare?

          https://www.wsj.com/articles/cnn-restricts-access-to-facebook-pages-in-australia-11632868267?

          Meanwhile, the repeal of Section 230 wouldn’t happen in a vacuum. Pretending that the consequences of repealing Section 230 wouldn’t happen against the backdrop of whatever speech codes Facebook and Google are negotiating with the FTC and the Biden administration is like pretending that how Facebook and Google are moderating their content now isn’t influenced by the antitrust lawsuits that are threatening to break them up–over the way their tolerance for “misinformation” on their platforms.

          It’s important to distinguish between the real world and what people are saying about it our how we look at it. I had a friend who was run over by a truck when I was in high school. It was so sad. No one wanted to look at it like he was gone forever, but the consequences were what they were regardless of how we looked at it. He’s gone, and I still miss him. If we repeal Section 230, people will rationalize it, but the negative consequences will be dire anyway.

          1. Meanwhile, CNN dropped off the face of the social media, as far as Australia is concerned, because Australian courts did what repealing Section 230 would do.

            Australia never had a section 230, no one on the planet does except the 50 US states. What Australia did was not remove a law, it added one, specifically one that made social media companies liable for hateful/violent content.

            We seem to be forgetting that we don’t need a first amendment of the internet called “section 230” because we have a first amendment which already covers the tech giants. It’s called the First Amendment, which unfortunately also only covers the 50 states.

            1. “What Australia did was not remove a law, it added one, specifically one that made social media companies liable for hateful/violent content.”

              Australia made it necessary for CNN to answer in court for the comments third parties wrote on its Facebook page, and repealing Section 230, here in the United States, would have the same consequences.

              1. You completely ignored that Australia CREATED a law to go after CNN.

                So, Ken, how the fuck are things going to get worse without crony protection for your precious tech monoliths?

    2. Certainly, should such a consent decree emerge it will be important to hold the line on Section 230, but the more immediate threat is some idiot disemboweling Section 230 before that. See, e.g., https://techcrunch.com/2020/12/23/trump-ndaa-veto-section-230/

      It’s not easy to defend what’s already been destroyed. The Democrats already turned away from free speech, will the Republicans follow their stupids into the same?

  4. “Tech giants expressing openness to amending Section 230 are doing so out of naked self-interest, not the goodness of their hearts.”

    You don’t say?

    1. “Tech giants expressing openness to amending Section 230 are doing so out of naked self-interest, not the goodness of their hearts.”

      Translation – I was out drinking all night, and I’ve got a deadline to meet!

    2. Thank goodness courts haven’t interpreted 230 to be beneficial to those large corporations.

  5. “Facebook Welcomes Regulations, Specifically Those That Hurt Its Competition”

    This centuries old lobbying tactic to protect/preserve monopolies and oligopolies (via government regulation that is falsely portrayed as benefitting the public) is known as “Regulatory Capture”.

    Behind yesterday’s news story that FDA just approved the first nicotine vapor products is the fact that Big Pharma (i.e. Johnson and Johnson, GlaxoSmithKline and Pfizer) and Big Tobacco (PMI, Altria, BAT/RJR, Imperial & JTI) ALL lobbied FDA’s Mitch Zeller (who previously worked as a lobbyist for GSK) to regulate nicotine vapor products as tobacco products, which is why Zeller’s FDA has banned >99.9% of nicotine vapor product now on the US market.

  6. no don’t throw me in the briar patch.

    1. Yup.

      Last week’s Facebook “whistleblower” testimony was an act designed to engineer a Facebook-friendly social media regulatory scheme to lock in Facebook’s dominance.

      Zuckerberg spent $500 million and bought himself a government last election and he means to use it.

      1. wonder if he was always evil or it came with the power & success

        1. You don’t start out by screwing over business associates and friends if your a good guy.

          1. looks evil in every pic … it’s like Damien

  7. When asked by host Dana Bash if he supported “amending Section 230” in order to “hold companies like [Facebook] liable” for certain posts made on their sites, Clegg responded that he did, and recommended “mak[ing] that protection…contingent on them applying…their policies as they’re supposed to, and if they fail to do that, they would then have that liability protection removed.”

    What, exactly, does that mean in practice? “You tell me, because it makes no sense to me,” says Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy and author of The Twenty-Six Words That Created the Internet, a book about the history and application of Section 230.

    What does that mean in practice?

    That they uphold the ToS they lured you in with. That these platforms act as PLATFORMS, places where creators and users post THEIR thought, ideas and creations without having to run a woke gamut every time they try to put something up.

    That censorious policies are brought to bear ONLY when the law is being broken.

    If they want to act as PUBLISHERS, instead of PLATFORMS, then they should face all the liabilities that publishers face.

    Why is this so fucking hard for the ‘libertarians’ at Reason?

    1. If they are publishers should they be required to compensate the content creators?

    2. ToS don’t exist in most of the apologists arguments. When I signed up fifteen years ago it was to a radically different set of rules.

      1. They ignore contracts completely even when given a direct lawsuit that a judge rules contracts from the ToS fell under 230 protections from suit.

    3. That they uphold the ToS they lured you in with.

      I doubt that. The statement was:

      contingent on them applying…their policies as they’re supposed to

      That implies to me not a willy-nilly forum, but rather, strict content monitoring and filtering based on their “policies”, and implementing those that they are “supposed to”.

      I don’t believe for a moment that Clegg is advocating for unmonitored/uncensored user content.

      1. Yes, THEM applying THEIR policies obviously refers to Clegg imposing some strictures on them from outside.

        Who ties your shoes for you?

    4. What does that mean in practice?

      What it means in practice is that you can only be an Internet publisher if you are big enough to afford a legal team comprising at least a dozen lawyers.

      1. What it means in practice is that you can only be an Internet publisher if you are big enough to afford a legal team comprising at least a dozen lawyers.

        ….but you can be an internet PLATFORM and enjoy the protection of 230 with none.

        1. Well, that’s why Facebook would like to change Section 230 now! Imagine that!

  8. Clegg’s answer to a question about Section 230, the clause within the Communications Decency Act which generally shields platforms from liability for user-generated content posted to their sites, was perplexing.

    There was nothing perplexing about it. Your commenters have been directing the Reason staff to Facebook’s ‘regulation’ page on their site for what, over a year now? You’re acting like this totally came out of left field. You were told, the information was there, in clear, plain English, yet this publication continued to write about the Tech companies as if they were just libertarian cowboys, only interested in a wide-open internet, free from regulation where open dialog and the exchange of ideas could flourish unabated.

    1. It’s perplexing because Section 230 protects them, and its policy is a huge foundation for the success of a business like Facebook’s.

      Making a play for oppressive regulation makes sense generically, if your business is the big sort that can survive while your smaller competitors are smothered. But Facebook is mistaken if they think they would succeed (more) in an internet with Section 230 disembowled. Now Google, Google would do fine without Section 230. But not Facebook, Their business is still too much a communications one. An internet without comment sections is one without relevant Facebook walls for stupid extended family members to argue about politics, which near as I can tell is the main draw for the products (users) to continue using the platform.

      And I haven’t heard a scenario where the Section 230 disembowling itself confers particular protection on Facebook, compared to Facebook’s competitors. That would have to come from somewhere else, like Ken Shultz’s comment regarding a hypothetical consent decree.

      So if it doesn’t make business sense, the best explanation I have is that Facebook has taken a position out of desperation to ward off the Democrats from passing something even stupider. They (maybe rightly) calculate that damage to Section 230 isn’t likely – it’s a one sentence provision, it’s there or it’s not and therefore total repeal is unlikely. And their messaging might be enough to mollify their Democratic overlords, at least from passing the Internet Reeducation Ensuring Antifascist Maximization law (or, I-REAM)

      1. But Facebook is mistaken if they think they would succeed (more) in an internet with Section 230 disembowled.

        Facebook doesn’t care; they have the money to hire the lawyers to deal with ever more complex regulations; most of their competitors don’t.

  9. You forgot to put “whistleblower” in quotes.

  10. Between Clegg (not just elitist scum but British elitist scum, AKA upper-class twit) and the “whistle-blower” (AKA Zuckerberg’s sock puppet) and CNN, I’m not sure what the hell is going on here, but I’m pretty sure it’s something evil that involves a shitload of lies and probably is specifically designed to cause cancer in children.

  11. Tech giants expressing openness to amending Section 230 are doing so out of naked self-interest, not the goodness of their hearts.

    Tech giants support for Section 230, like tech giants support for net neutrality, are also done out of naked self-interest.

    But according to Reason, Section 230 and net neutrality were ideal libertarian policies!

  12. A common yet questionable refrain prevails among capitalist nation governments and corporate circles: Best business practices, including what’s best for consumers, are best decided by business decision-makers.

    This was most recently proven false with Facebook prioritising the expansion of its already huge profit margin over the health of its younger users. It was proven false when long-term care-homes put profit maximisation before their residents’ well-being, neglect that resulted in needlessly numerous COVID-19 deaths. And proven most false when the pharmaceutical industry knowingly pushed its new, very addictive opiate painkiller.

    Western business mentality and, by extension, collective society allow the well-being of human beings to be decided by corporate profit-margin measures. And our governments mostly dare not intervene, perhaps because they fear being labelled anti-business by our avidly capitalist culture.

    Sadly, maximizing profits by risking the health or lives of product consumers will likely always be a significant part of the big business beast’s nature. But that does not mean that we should give in to it. Rather, it should be a call to society, and especially our elected leaders, that the economy and jobs be there foremostly for people, not for corporate profit’s sake.

    1. This was most recently proven false with Facebook prioritising the expansion of its already huge profit margin over the health of its younger users.

      Facebook wouldn’t exist in a free market. And in a libertarian society, Facebook could be sued for damages.

      Rather, it should be a call to society, and especially our elected leaders, that the economy and jobs be there foremostly for people, not for corporate profit’s sake.

      Our elected leaders are precisely why Facebook is the harmful monopolist it is. And most of our elected leaders don’t give a f*ck about the well-being of children or adults in the US.

  13. The only successful way to end the social media cancer is to break it all into a million pieces. And burn zuckerturd at the stake. That maggot punk is the new Hitler.

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