aisle 3, section 230

Produce section… subsection… sectional… Rick’s section of the company: Accounting.

Lots of interesting uses of the word section.

You might be saying: “Mason, what are you talking about? You’ve lost it you idiot! Leave us all alone!”

To which I say “Yea. You’re probably right. BUT BAM SURPRISE RELEVANT SECTION!”

I then throw a smoke bomb at my feet and emerge on a stage with a sick powerpoint presentation. You are rapt with attention.

It’s Friday baby and we’re talking about our friend Section 230.

This week saw the regulatory hearings hit very close to home: App stores. In particular Apple’s vice grip on their rails that support much of our livelihood. This is still developing and I think there’s a chance we’ll see legislation on this, but it’s hard to get a read on where the wind is blowing with that.

HOWEVER, as the regulatory hearings continue on, there is one common refrain: What do we do with Section 230. Out of all the possible paths forward, my reading of the tea leaves says this is the piece of legislation that will be updated. And guess what? It’s related to things like data and privacy. And perhaps more interesting: the impact of that; or maybe better stated the damage that can be done.

I thought I’d take this week to spell out my understanding of the clause itself, why it impacts our work, and how things might turn out.

Let’s get political!

Section 230? Who’s that!?

What is it:
The Verge’s breakdown is fantastic:

“Section 230 of the Communications Decency Act, which was passed in 1996, says an “interactive computer service” can’t be treated as the publisher or speaker of third-party content. This protects websites from lawsuits if a user posts something illegal, although there are exceptions for copyright violations, sex work-related material, and violations of federal criminal law.”

Section 230 is the reason why you can see some abhorrent stuff on Facebook / Instagram / Youtube / Twitter / nameyourplatform - but those companies can’t necessarily be held accountable for that content. It’s a shield that essentially says moderation can be done without fear of legal retribution. The Electronic Frontier Foundation calls it “the most important law protecting internet speech.”

Another way to put it would be: Acting as a platform for user behavior is different than being a publisher. The Washington Post’s articles are held to a different legal standard than its comments section. It does get messy with everything around free speech, but that can be for a different day.

To bring it home: I’ve worked on a app with public facing reviews. If someone posts something awful in the a review that was publicly available, because of Section 230, Throne would not be liable for anything said, threatened or displayed in that space. Or if someone posted a massive government overthrowing manifesto in a review, the government can’t bring charges against my clients. Though the FBI will likely have questions…

Should they moderate that content? YES. And many of these platforms moderate ANYWAYS for two reasons:
Advertiser $$$
Fear of regulation

So for a long while it seemed like a problem that largely tended to itself. Then things changed.

Why now?
Well… 2020 was a little weird.

Back in December Section 230 was on the chopping block as a package deal with the next round of stimulus checks… which… what? And then also was responsible for the close veto of the last Defense Authorization Act… what are we doing???

So that brought it back into the spotlight in a BIG way. But ALSO it has been the ongoing scrutinization of platforms like Facebook, Youtube and Twitter that has made people on both sides of the aisle want to look at our favorite Section with a critical lens.

Section 230 is why Parler isn’t liable for Jan. 6th even if that platform was used as a critical tool in coordination of it. It’s also why Youtube isn’t being sued left and right for some of the BAD stuff that is uploaded to it’s platform.

It’s a broad shield and one that many are calling for updating, but without it, I pose the very nature of today’s internet wouldn’t be possible. Or at least the amount of innovation that came from the US. It is because of this lack legal liability these platforms COULD evolve and fundamentally change… everything. Not everything was for good! Yes! But it was a insane leap forward in what could be done over the internet.

Mind you this is not me saying it shouldn’t be regulated, more posing we should be nuanced when examining protections like this in our field so we don’t squash the innovation of the next wave of wide eyed products and services.

How things could play out:
Something is going to happen. A lot of hearings, politicians and business leaders are getting in the mix.

Section 230 is thrown out and revised for new, more targeted legislation.
The previous and current administration have tossed options out there that reflect this. Think clearer requirements around scale, moderation, and content restriction with topics like child engagement, illicit activities and national security.
For us that likely means increased requirements on behalf of our clients’ compliance and legal teams. Content that is user generated will be under more scrutiny. Data and use of data will have to be more explicit.

Section 230 is modified or “updated”. This can be boiled down to restriction of certain content types (which has already been done to restrict sex worker content… which, fun fact(?) is why craigslist no longer has a personals section). The other is bar setting: Platforms don’t receive a liability shield until they hit certain government mandated requirements for content and moderation.
The FTC does something else entirely to address it. You can’t yell fire in a theater and maybe they apply onus to the user rather than the platform. It’s not Honda’s fault someone got behind the wheel drunk. This is the least likely scenario in my eyes but I could see the argument…. MAYBE.
I think Section 230 is a net positive but needs some love. The GDPR shows the lack of impact new legislation can bring (for the record I think there are good things in there, but the manifestation of it is more a nuisance thus far).

Looking at it through the lens of giants like Facebook and Twitter it’s obvious something must be done.

But also I side eye anytime a large company supports regulation… For example, the application of regulatory forces shouldn’t STRENGTHEN their market position. The same protections that allowed them to scale from a college dorm should be available to the next generation of innovative tech companies to upend markets and flip scripts.

It’s the one’s on the top end that need to be put in check. It’s a situation that calls for rules to apply at scale.

I’m hoping one of these weeks I can think about something else, but it does seem like privacy, content and data are the hairy problems of our time. Which also means there’s an in for shops like us.

Someone should… you know… do something about it.