Why Section 230 Is a Good Law and Why Messing with It Would Be Bad
techdirt.comI think that censorship should be expressly limited based on size and usage of 230 protections. ex: if you have 10+ million users and you want to cite section 230 protections, you may not censor protected speech, but maybe allow users to opt-in to a "censored" feed, or otherwise limited such as for minors.
I'm mixed, but I don't think companies should have 230 protection AND be able to make express publisher decisions on editorializing content.
Supreme Court Justice Clarence Thomas suggested that Congress could consider extending "Common Carrier" legislation to cover social media networks. I'm not convinced that would be an improvement over the current situation but it's an interesting idea. The telephone company doesn't censor which topics I can discuss in phone calls so perhaps other communication technologies should work in a similar way?
https://www.npr.org/2021/04/05/984440891/justice-clarence-th...
This completely ignores the history of why common carrier regulations were originally implemented.
Common carriers had such regulation on them because their infrastructure was a natural monopoly. The lone train line through the town. The single telegraph and telephone operator. The only trucking company operating that route.
It's not clear to me we're at the point that Facebook is the only real way for us to talk online. It seems like there's a lot of easy to access competition in this space.
Facebook+Instagram+Whatsapp/iMessage is a "natural monopoly" because of their network effect, just like the older monopolies. You can run a telephone cable to your neighbor, but good luck reaching anyone else. I can run a chat server to talk with a few specific friends too in the same way, but will you be able to use it to talk to a random company/store/stranger?
> It seems like there's a lot of easy to access competition in this space.
If I give you the money to buy and operate the required amount of servers and a couple developers, will you be able to launch a Facebook competitor in the next year? I doubt so.
Fundamentally the idea is that you ought to be able to participate in society without undue hardship solely by the whim of the (power,phone,water,communications) company. I don't think it is that unreasonable to regulate Facebook in that sense.
Also a lot of government agencies themselves basically only post up to date information on Facebook/Twitter. Do you think I should have to go through a hostile third party just to receive information from the government?
> Facebook+Instagram+Whatsapp/iMessage is a "natural monopoly" because of their network effect, just like the older monopolies
They're natural monopolies and yet I don't use any of them and somehow successfully talk to you here, right now. Strange huh, I thought they were a monopoly on internet communication. Can't possibly make a platform for people to talk without Facebook or iMessage and yet here we are. I guess Discord is also really Facebook? Signal? Telegram? I guess this is really just Facebook or iMessage behind the scenes for all of these things?
> If I give you the money to buy and operate the required amount of servers, will you be able to launch a Facebook competitor in the next year? I doubt so.
If you give me less than a week and some budget that scales with users I'll have something thrown together that can scale to at least several hundred thousand users. How long did it take for Moltbook to be made? How much do you think they spent building it? You think they spent years and millions on that? Do you really think it actually cost them that many millions to make Truth Social?
> You can run a telephone cable to your neighbor, but good luck reaching anyone else.
The lines are already run, it's called the internet. We're already all connected to each other. We can reach practically anywhere on the planet with the wire or signal coming into your home. That is a natural monopoly. There is probably only one fiber or coax provider, there's only so much useful RF bandwidth, etc.
If you give me an hour I'll give you a page on the Internet saying anything you want it to say, and everyone in the world (outside of Iran or North Korea) will be able to see it and interact with it.
Competition is a click away. Compared to the industries where there's often only one telephone provider, only one train company, only one major airline, etc.
> Also a lot of government agencies themselves basically only post up to date information on Facebook/Twitter.
Those agencies have websites and other means to disseminate information. They are in no way limited to only Facebook. Many have the ability to make every single phone and radio and TV station say whatever message they need to get across. They have lots of means to get information to you.
> I don't use any of them and somehow successfully talk to you here
There's no train monopoly, I can just walk to the office! A monopoly does not have to exert total control to be a problem.
I shouldn't have to walk to the office because the train company has a problem with my viewpoints. I shouldn't have to spend a ton of extra effort to communicate with people and businesses because Facebook doesn't like my viewpoints, either. No private company should have that kind of power.
> that can scale to at least several hundred thousand users
It can scale for sure. Will it have all these users though? I can also go buy several containers worth of fiber optics cables. But that doesn't make me a competitor to the local ISP because there is such an incredible amount of human friction I must go through to compete with their network that it effectively locks out competitors.
You're not carrying a train load of stuff on your back. They're inherently different things. A chat website is a chat website. You can say whatever you want and talk with people without using Facebook. We're doing it right now. It's insane for one to argue you can't talk on the internet without Facebook on a website other than Facebook. This website is an example that Facebook isn't a monopoly on communicating!
There are legal limitations to installing fiber in a city or laying track. There isn't in hosting a website, at least in most jurisdictions. Open port 80 and 443, register a domain name, and you're hosting whatever you want to say to whoever wants to listen anywhere on the planet.
> I shouldn't have to spend a ton of extra effort to communicate with people and businesses because Facebook doesn't like my viewpoints, either. No private company should have that kind of power.
You don't have to. It took you the same effort (probably a lot less!) to come here and talk. There's thousands of other places on the internet you can go talk as well with about the same effort as Facebook. Go talk on X. Go to Truth Social. Or Bluesky. Or Mastodon. Or Reddit. Or Nextdoor. Or this or that and on and on and on...
Alex Jones and Infowars and such content has been banned from platforms like YouTube and Facebook and the like. I guess they just can't post their content on the internet anymore. What's this? https://banned.video/ Sure seems like they're still making all kinds of nonsense videos despite Facebook having a monopoly on the internet! They were even sued into oblivion for the things they said on the internet, and yet somehow they're still getting their message out.
Once again, you're telling me it's impossible for you to talk to me on the internet, that without Facebook it's just so onerous to do so that it's just unworkable, and yet here we are communicating and they are not involved in the slightest. How does that work?
Going back to your earlier comment, it really shows a lack of understanding of what it means to be a natural monopoly.
> because of their network effect, just like the older monopolies
This is wrong. It's not just the network effect, it's the totality of it. That there's only one train line, and the economic, physical, and political realities practically guarantees there will only ever be one or two companies operating that market. That it's practicallyimpossible for competitors to even access that market. This is untrue of Facebook. There's loads of competitors, anyone can just as easily use them. These companies come and go. Friendster? MySpace? Even the relevance of Twitter massively changed in a few years. If X bans your account or you don't want to do business with them anymore you can go talk on Threads or Mastodon or Bluesky. Nothing is preventing you from using their competing services, which is unlike having the only train line or the only fiber ISP or the only major airline servicing the area.
If you want to compete against Facebook, it's incredibly easy to get access to the market of all Internet users. Just open port 443 and run some free software. If you want to compete in the market of transnational rail, it's a bit more difficult wouldn't you say? Like, practically impossible to enter into that market at all? One can be done with a $20/mo VPS and an afternoon to get started, and the other takes probably a trillion dollars, years of political negotiations, decades of building, and then you can start to compete. Seems a little different, no?
I'm not sure that would work. How about spam or adverts? That's protected speech. And downranking based on viewpoint is not any different from censoring.
Yeah you can say X but no one will see it.
I can see potentially requiring platforms to moderate in a "viewpoint neutral" way, though, which only applies if you have ~5% of potential customer base as users.
It would at least create a diseconomy of scale and discourage centralization.
Sounds like you’re talking about the presumed free speech rights of corporations, which is part of this debate. I think corporations should have much more limited speech than an actual person and the concept of corporate personhood in general needs to be walked back significantly.
Yes it’s important for news organization and such to have unrestricted speech, but that seems solvable by keeping them in a separate category and excluding corps that engage in other lines of business. I don’t want say Google to be have full censorship and editorial privileges just because one of their many products surfaces news.
I can spam or send misinformation here just fine without being a corporation. And it's legal speech. Should platforms not be able to moderate this?
> news organization and such to have unrestricted speech [...] by keeping them in a separate category and excluding corps
This is an misunderstanding of "freedom of the press". The "press" is a reference to the printing press as a device itself. News organizations (which are usually for profit) have the exact same rights to free speech as anyone else. The natural analogy is printers and the right to publish information online.
I think this is one of those things that only ever makes sense in the abstract. How would this rule apply to Stratton Oakmont v. Prodigy? Would it make sense to tell Prodigy that they'll be immune from defamation suits if only they agree to make their offensive language monitoring opt-in and publish a new code of conduct permitting racial slurs?
I'm honestly not sure... it could also backfire with intentional social groups... such as someone created a social network expressly for progressives or conservatives, where repeated contrarian rhetoric is simply disallowed (for good or bad), for people who want to live in their bubbles, like MSNow.
(last comment regarding MS Now is meant for humor)
(Reminder that TechDirt is also a lobbyist Copia Insitute who takes money from big tech clients.)
Section 230 is a terrible law because it exempts one class of business from any responsibility for their actions.
A global company which faces no penalties for allowing malicious and fraudulent content has no incentive to police itself, and its clients live outside the reach of the law. Ergo, they make money on crime and have no responsibility for it.
If we want to fix the Internet, step one is deleting 230 in its entirety, and step two is ensuring a tech platform cannot profit from illegal activity. That means if they sell a malicious ad, they at bare minimum, have to give up that revenue, and ideally, face a penalty for it if they aren't taking adequate measures to prevent abuse.
A true financial risk to tech platforms is the only way to incentivize good behavior.
There's some logic to wanting to assign responsibility for other's actions upon those who enable it. Like you say, to incentivize intermediates to police their users and those they do business with.
But the problem with deputizing intermediates is that it's too effective. It creates incentives to over-police and we have less rights against corporate policing than we do government policing. We would not have the internet we have today without the user generated content and moderation that section 230 enabled.
Like, as someone who grew up in the formative years of the Internet, I get it, but also, what we have is incredibly bad and it's very possible we'd be better off without it. The tech crowd does not want to admit that every single effing website that lets you post images has CSAM. Every one! The tech crowd doesn't want to admit an entire generation of our kids are screwed beyond belief by social networking. The tech crowd doesn't want to admit that Donald effing Trump got elected because our population is incredibly easy to manipulate.
Our society is very, very screwed up right now and it's very likely the principle cause is that we gave Google and Facebook complete blanket immunity, and that was an incredibly moronic thing to do.
If something needs Section 230 to exist, it shouldn't exist. Full stop.
Appreciate you sharing that. Agree with the overall concern with children using tech and I'd start with banning smartphones in school classrooms. Two observations:
Why stop with image boards? After eliminating all photo uploads, awful people still produced and shared illegal content. So then we eliminated unlicensed camera use. 'Course the real problem still happened.
Hacker News is made possible by Section 230... should it not exist?
> Hacker News is made possible by Section 230
This is false. Basically everyone that's argued this has been funded by tech companies. The reality is Section 230 is at best, an inconvenience for good actors, while being an incredible gift to bad actors. It lets a good actor avoid a possible lawsuit. (And law requires intent, Section 230 does not meaningfully protect someone who didn't intend to enable bad actors.) It guarantees a bad actor can profit off crime with impunity.
And I think the financial incentives in participating the Internet absolutely make it worth the risk for a well-run business, including one with UGC, to make reasonable risk decisions about their liability. (HN, selling no ads, nor hosting image or video files, probably has extremely minimal risk.) The marketing about the importance of 230 is crucially about protecting tech companies' immunity and ultimately, their bottom line, but it doesn't mean everything stops existing overnight.
But again, my position remains consistent: If it can't survive without Section 230, it shouldn't.
In Stratton Oakmont v. Prodigy, Prodigy ran a message board and would have escaped liability for defamation by a third-party save one problem: they exercised editorial control by moderating content.
Hacker News faces the same risk.
Respectfully I prefer a world where Hacker News exists.
I agree article reads like a lobbyist wrote it.