Jeff Kosseff’s bold book “The Twenty-Six Words that Created the Internet” gives a complete history of and forecast for (with his own interventions) for Section 230 of the 1996 Telecommunications Act (or “Communications Decency Act”)
This is the provision (which “survived” the Supreme Court in 1997) that shields platforms and websites (and I guess web hosting companies) from civil liability for content their users post in “most” circumstances even if these sites moderate content or have policies to remove culturally objectionable content.
The text of these words is “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information provider.”
This liability shield typically protects social media platforms and forums from civil liability for most torts committed by users, most commonly defamation claims.
It does not cover copyright claims. That is handled by another law, the Safe Harbor provision of the Digital Millennium Copyright Act of 1998.
But these two laws are generally thought to make the modern Internet, with social media, possible, In Europe the downstream liability protections are much weaker, especially with copyright (because of the recent articles discussed in other posts) and there is also enforcement of a “right to be forgotten”. Yet some reasonable user-generated content exists in the EU but it is getting riskier.
The book is organized into an Introduction and four parts with 13 chapters.
In this review, I am going to give separate links for the major cases he cites, for the details.
Part 1 is “The Creation of Section 230. (Chapter 1-3)
Smith v. California (1959): SCOTUS decided that a
bookseller is not responsible for unknowlingly selling an “obscene” book
(“Sweeter than Life”)
Cubby v. Compuserve (1991). A district court decided that CompuServe was responsible only for defamation in a user’s post if it knew about the defamation. Theoretically, this could make a platform like a “telephone company” with no further changes to law.
Stratton Oakmont v. Prodigy (1995), where a NY court held that Prodigy was liable for defamation about a brokerage because it did do some monitoring or exercise editorial control.
Kosseff goes on to explain how Congress came up with the CDA, but senator Exon decided on the liability protection clause to encourage Internet companies to grow as long as they did not delve into child-harmful materials.
Part 2 is “The Rise of Section 230 (Chapters 4-7, Cp 7 is “American exceptionalism”).
Zeran v. AOL (1998, 4th Circuit). A random individual got constant phone calls about the OKC bombing because of publication of a wrong number.
Batzel v. Smith (2000) An attorney was defamed by claims she owned Nazi art.
Ripoff Report
Roommates.com This case is interesting because one wonders why it would be against the law for people to use their own criteria to pick roommates. Colleges deal with this, and that was an issue in my own life (in 1961), as I have covered elsewhere.
Part 3 “The Gradual Erosion of Section 230”, Chapters 8-9
Abika: Section 230 protection denied if a site “developed” derogatory information as well as
Barnes v. Yahoo! A provider does not necessarily have to honor a promise to take down derogatory or harmful content
Part 4 “The Future of Section 230”, Chapters 10-13, and Conclusion
“The Dirty”
The author describes his own role in proposing changes to Section 230, FISTA-SESTA, to handle the “Backpage” problem, but is very critical of the ambiguity and overreach of the law that Congress came up with. It should be noted FOSTA has made street life dangerous for sex workers (I will avoid moralizing) and particularly trans POC.
The author balances the good to society from enabling user-generated content, to the terrible harm that has come to some individuals, sometimes from cyberbullying or revenge porn, but more often to people caught in improbable circumstances, like Zeran and then Batzel. On the other hand, “citizen journalism” has enabled ordinary people to catch horrible errors by mainstream media (as with the Covington kids and Nicholas Sandmann) and even to contribute valuable information about COVID-19 tracking (Ali Schiffmann’s tracker is not the only one, and some of it is so detailed as to be likely to exert political pressure on officials to better control the pandemic)
Kessler’s book was written before Trump’s XO, and before legislation like the EARN IT and PACT acts were introduced. Trump and Biden are both hostile to Section 230.
The sad truth is that (partly now with the pandemic and with the anti-racism movements) US society is being forced to turn away from individualism and toward much more attention to purported collective goods. This is even more true in the European Union (with its Copyright Directive). We are more likely to see an environment where people will be prescreened for business purposes or social credit before being allowed to have unlimited (non-ephemeral) public accounts. “Being listened to” by the whole world is not really a constitutional right, it is more like a conditional privilege (as with the title of my own 2014 DADT III book).
(Posted: Saturday, July 4, 2020 at 12 noon EDT)
A
https://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.
https://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.
https://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Prodigy_Services_Co.
B
https://en.wikipedia.org/wiki/Zeran_v._America_Online,_Inc.
https://www.dmlp.org/threats/batzel-v-smith#node-legal-threat-full-group-description
https://blog.ericgoldman.org/archives/2012/02/roommatescom_is.htm
C
https://en.wikipedia.org/wiki/Barnes_v._Yahoo!,_Inc.
D
https://billsnewscommentary.com/?p=5891
https://billboushkafil.blogspot.com/2020/07/what-is-tvpra.html