Wikipedia:Wikipedia Signpost/2023-02-04/Section 230
Twenty-six words that created the internet, and the future of an encyclopedia
- JPxG is a welder, forklift driver, software engineer, message board administrator, and Wikipedia editor who has written a number of articles for the Signpost, and a number for Wikipedia, including "Extremely Online", which he has been since some time around 1999.
In two major English-speaking countries, two separate legal mechanisms are working their way through two separate processes. The first is a
The Spirit of '96
- See prior Signpost coverage and this issue's In the media.
Section 230 of the United States Communications Decency Act[1] is a federal statute made effective in February 1996. While a detailed explanation of all that it meant then, now, in between, and to the major political players of the last few years would make for quite thick reading, the section itself is quite short:
“ | No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. | ” |
Of course, the First Amendment of the United States Constitution (and a little over two hundred years of subsequent jurisprudence) say in plain terms that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances".[2] However, the Internet occupies a unique place in law, as a decentralized structure in which messages are conveyed between users by intermediaries; Section 230 ensures that those organizations which provide the infrastructure for posting need not individually consider the content of each message being conveyed.
Prior to this, it was an open question whether websites themselves could be held liable for their users having made defamatory, tortious, or outright illegal posts (in addition to the users themselves). In fact, the case that prompted its creation was Stratton Oakmont, Inc. v. Prodigy Services Co. (yes, that Stratton Oakmont), which held that a hosting provider was legally liable for an anonymous user's defamation of a businessman. In this case, the fact that Prodigy had exerted any editorial control over the message board (including deleting posts for being spam, off-topic or just plain dumb) meant that they assumed the role of a publisher and were therefore responsible for whatever posts they didn't delete.
By permitting websites to serve content without their operators being exposed to lawsuits every time someone posted bad on them, the gates were opened to the modern web: Section 230 has been referred to as the "twenty-six words that created the Internet". But lately, things have been popping entirely off.
Popping off
In the last few years, it has become the
Presently, two cases stand before US courts, both seeking to change the current interpretation of the law:
NetChoice v. Paxton
This lawsuit concerns the recently-introduced Texas House Bill 20, a 2021 piece of legislation that applies restrictions to the editorial policies of "large social media platforms", i.e. those with more than 50 million monthly active users in the US. Guess who had 44,955,915 users in the last year?
It enjoins these sites from "censoring on the basis of user viewpoint, user expression, or the ability of a user to receive the expression of others", and allows for removal only under a few limited circumstances, like the post itself being unlawful or "directly inciting" criminal activity. Some have noted that this does not exactly make sense when applied to a site like Wikipedia, where "moderation" is carried out by the same group of volunteers as normal editing: is replacing the text of a Wikipedia article with "peepee poopoo" censorship, or is reverting that edit censorship? Are they both censorship?
Some have noted that the bill seems to fling similarly offensive materials all over Section 230 – most notably the plaintiffs in this case, NetChoice and the
Gonzalez v. Google
While the
A dizzying panoply of organizations have filed briefs in the case, ranging across the political spectrum, and including some familiar advocacy groups. The brief from the
claims that immunity should be stripped in order to curb "hateful and extreme content": "After the 2020 murder of George Floyd, ADL reported that anti-Black posts on Facebook had quadrupled, and the number of white supremacist propaganda incidents has nearly doubled".Conversely, many briefs urged the court to uphold immunity for websites, including those from the American Civil Liberties Union and Electronic Frontier Foundation. Perhaps one of the most notable filings was from Reddit, Inc. and Reddit Moderators, in which two amici are pseudonymous volunteer moderators (u/AkaashMaharaj and u/Halaku).
Most relevant here is the brief filed by the Wikimedia Foundation, in which many arguments are made for the inability of a web without § 230 immunity to accomodate works such as Wikipedia. A quote:
Petitioners’ flawed theory of Section 230 has it backwards: rather than locking in advantage for major technology players, Section 230 ensures that websites with small budgets but large impacts can exist and compete against the big players. Petitioners’ interpretation would hollow out Section 230 and call into question its protections for platforms that need it the most. The Court should decline that invitation, particularly given that Petitioners’ theory lacks any textual basis.
[...]
Even with Section 230, litigation based on user speech can costs tens if not hundreds of thousands of dollars at the motion-to-dismiss stage ... These costs alone are significant to smaller and lesser-funded websites. But without Section 230 granting start-ups the ability to dismiss cases against them, their legal expenses would pile up even higher, ranging anywhere from $100,000 to $500,000 or more for each case that reaches the discovery stage.
— Wikimedia Foundation
The WMF brief goes on to cite the hundreds of content-related legal complaints received yearly in the United States alone, and the ubiquitous nature of content recommendation even in the design of a website as simple as Wikipedia – most visibly the
What does it mean?
Well, who knows? It may sound like a mere reconfiguration of liability law – certainly, much of the political discourse surrounding Section 230 focuses on "holding tech companies accountable" – but there are far-reaching implications to a potential state of affairs where posting (or hosting posts) is a privilege of the few. And certainly, there are some who welcome such a change; the worldwide reach of Wikipedia and its pseudonymous ilk have proven quite inconvenient for a number of powerful entities over the years. However, there are obvious benefits to a free web, and the extent to which people are willing to throw these away is often overstated. Of course, it is easy to imagine doom and gloom, and that may even be a plausible outcome. But even in a scenario where immunities were stripped (which would likely be catastrophic for posting writ large) it is also easy to imagine existing carveouts being broadened to include things like Wikimedia projects.
The fate of Section 230 lies in the hands, not only of the Supreme Court, but of the whole rest of the United States government apparatus, which is able to challenge decisions, as well as modify and create new frameworks and processes for going about things. At the end of the day, it lies in the hands of voters, citizens, and posters from whom the government draws its legitimacy, and to whom it is ultimately accountable.
The Signpost looks forward to keeping you updated on these developments for as long as we are able to do so.
Notes
- ^ Actually, it is Section 9 of the CDA, and Section 509 of the Telecommunications Act of 1996, but it is typically called "Section 230" because that's what it is in Title 47.
- ^ NB: After publication, a friend pointed out to me that, while it was kinda cheating by cutting off the last part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press" is also 26 words.
Discuss this story
This is an issue that is only going to grow more serious, & glad to see some attention to it here. Critics from the left claim that social networking platforms offer profiling & recommendation mechanisms that allow groups to spread their propaganda to unwitting users. Critics from the right complain that they are the target of shadow banning. These social networking platforms depend on selling targeted advertising to stay profitable, while at the same time some form of moderation has been needed since the days of Usenet. -- llywrch (talk) 08:30, 5 February 2023 (UTC)[reply]