Some legal analysis of the DOJ recommendations for changing how Section 230 works.

One of the last things I kept tabs on before leaving the Kiwi Farms in disgust over how I got shit on by certain parties there for things I dare any of them to say as formal accusations in a court of law was how the US Department of Justice is seriously considering tweaking, weakening, or, at worst, abolishing the Section 230 of the Communications Decency Act of 1996.

Now, despite how cruelly I was lied about and abused there, what was done to me does not approach libel as far as I'm concerned, at least nothing I'd bother a courtroom over. I have the truth on my side, none of my accusers will ever dare back up with they say without the shield of an internet username, and given how the political winds are blowing, I predict the Farms will be shuttering its doors in a few months anyway, so let them take my public activity out of context and spread all sorts of garbage with maybe a tiny grain of truth and over 99.99% insulting invective. I'm a big boy, I can handle that.

Regardless, I bring that up because while I find the idea of anything they say being used against me as retarded, the recommendation the DOJ is proposing would be the death knell of a site like the Farms. If even a casual implementation of those reforms goes through, Null might as well shut down things ASAP before he's up to eyeballs in legal issues. Now, I actually am not pleased with this. Being able to talk shit about people and their public activities should be perfectly legal, even if that discussion is insulting and filled with falsehoods, distortions, and more cherrypicking than an orchard, and I still defend the right of those who have done so to me to keep going, even if I'm of the opinion they can take a long walk off a short pier and I wouldn't weep for them.

However, here's what the DOJ is proposing and why it would be suicide for any social media site or forum to allow such unfettered speech if they implement this in the most casual manner possible.

https://www.justice.gov/opa/pr/justice-department-issues-recommendations-section-230-reform

(original in italics, my comments in bold, emphasized original text in bolded italics. I am a layman, so I want it known upfront I have no legal training, this is just my understanding of how it reads based on my layman perspective of law from a US based perspective.)

Justice Department Issues Recommendations for Section 230 Reform

Reforms Strike Balance of Protecting Citizens While Preserving Online Innovation and Free Speech

The Department of Justice released today a set of reform proposals to update the outdated immunity for online platforms under Section 230 of the Communications Decency Act of 1996.  Responding to bipartisan concerns about the scope of 230 immunity, the department identified a set of concrete reform proposals to provide stronger incentives for online platforms to address illicit material on their services while continuing to foster innovation and free speech.  The department’s findings are available here. 

“When it comes to issues of public safety, the government is the one who must act on behalf of society at large.  Law enforcement cannot delegate our obligations to protect the safety of the American people purely to the judgment of profit-seeking private firms.  We must shape the incentives for companies to create a safer environment, which is what Section 230 was originally intended to do,” said Attorney General William P. Barr.  “Taken together, these reforms will ensure that Section 230 immunity incentivizes online platforms to be responsible actors.  These reforms are targeted at platforms to make certain they are appropriately addressing illegal and exploitive content while continuing to preserve a vibrant, open, and competitive internet.  These twin objectives of giving online platforms the freedom to grow and innovate while encouraging them to moderate content responsibly were the core objectives of Section 230 at the outset.  The Department’s proposal aims to realize these objectives more fully and clearly in order for Section 230 to better serve the interests of the American people.”

So far, so good in overview. This means, in simple English, they want online fora like forums, microblogs like Twitter, and places like Facebook to continue to block speech that is obviously in violation of federal law like that inciting crime while still encouraging lawful public expression.

On the face of it, I can concur with the overall sentiment expressed thus far.

The department's review of Section 230 over the last ten months arose in the context of its broader review of market-leading online platforms and their practices, which were announced in July 2019.  The department held a large public workshop and expert roundtable in February 2020, as well as dozens of listening sessions with industry, thought leaders, and policy makers, to gain a better understanding of the uses and problems surrounding Section 230.

Section 230 was originally enacted to protect developing technology by providing that online platforms were not liable for the third-party content on their services or for their removal of such content in certain circumstances.  This immunity was meant to nurture emerging internet businesses and to overrule a judicial precedent that rendered online platforms liable for all third-party content on their services if they restricted some harmful content. 

However, the combination of 25 years of drastic technological changes and an expansive statutory interpretation left online platforms unaccountable for a variety of harms flowing from content on their platforms and with virtually unfettered discretion to censor third-party content with little transparency or accountability.  Following the completion of its review, the Department of Justice determined that Section 230 is ripe for reform and identified and developed four categories of wide-ranging recommendations.

Let's be real here. There has been a naked and unapologetic movement on many major social media platforms and some of the more well-known forums to hew to certain narratives and bend, warp, and twist their terms of service to expel those who have not said anything unlawful, merely something that goes against whatever political or social axe the owners of said platforms wish to grind.

Now, Section 230 protected these platforms so long as they declared upfront what opinions were acceptable in advance and banned for certain content without prejudice, and did not attempt to curate or otherwise act as a publisher, approving only certain content fit for public consumption while shutting out dissenting yet lawful discussion. It would be outright discriminatory to deny service on such platforms due to their reach and lack of suitable alternatives based on political stance, race, or creed, but places like Twitter have made it clear conservatives are to not offend the other side or they will find any excuse to hide their posts, get them banned, or the case of President Trump, outright censor his posts or declare him a liar and link to his political opposition just to make it clear they want to be publishers of propaganda, not neutral content carriers who allow all speech so long as it is lawful as their terms of service used to defend for the longest time until it became politically and socially inconvenient to certain parties.

The DOJ now wants to punish such blatant prejudice and wants carriers who want to act like publishers to assume legal responsibility publishers would face, which means they sacrifice immunity from responsibility Section 230 formerly granted them.

Incentivizing Online Platforms to Address Illicit Content

The first category of recommendations is aimed at incentivizing platforms to address the growing amount of illicit content online, while preserving the core of Section 230’s immunity for defamation claims.  These reforms include a carve-out for bad actors who purposefully facilitate or solicit content that violates federal criminal law or are willfully blind to criminal content on their own services.  Additionally, the department recommends a case-specific carve out where a platform has actual knowledge that content violated federal criminal law and does not act on it within a reasonable time, or where a platform was provided with a court judgment that the content is unlawful, and does not take appropriate action.

Now, this is basically saying "any social forum that lets criminal speech fester while punishing lawful speech should be punished in turn"

Generally, I find this sensible enough. Twitter has been notorious for allowing tons of BLM/ANTIFA types to openly encourage rioting, looting, and otherwise incite all types of criminal activity while trying to punish people for posting information that gives the lie to their claims of white supremacists being guilty of the crimes they committed by shadowbanning it or censoring accounts that dare not support the groups I just mentioned.

Even someone having an opinion like "I hope the military is called out to fill the rioters full of lead to restore order" is a perfectly lawful statement. It's an opinion that the state should mobilize its forces to put down domestic insurrection with the force of arms, positions defended all the way by George Washington and the Whiskey Rebellion and which Andrew Jackson and Abraham Lincoln emulated in later federal administrations.

Unlawful speech would be saying X places need to be burned down and their contents stolen from their lawful owners.

However, Twitter has punished the former opinion but let the latter fester, even though the latter is a clear case of unlawful speech under federal statute.

Promoting Open Discourse and Greater Transparency

A second category of proposed reforms is intended to clarify the text and revive the original purpose of the statute in order to promote free and open discourse online and encourage greater transparency between platforms and users.  One of these recommended reforms is to provide a statutory definition of “good faith” to clarify its original purpose.  The new statutory definition would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and consistent with public representations.  These measures would encourage platforms to be more transparent and accountable to their users.

This is where any public-facing forum should cringe. Lack of transparency is a definite problem, but this is using a shotgun to swat a fly, as while it would combat places like Twitter or Facebook openly favoring certain political stances while punishing expressions of others through deceptive and biased abuse of their own terms of service in a discriminatory manner, this would mean any public forum would be at risk of having their owners made completely liable for the content of their individual posters unless the forum was an invite-only closed garden with no public-facing component.

This is something even a basic tightening of enforcement would spell the death of many types of forums and social networks unless they provided constant transparency on all their inner workings, otherwise, this puts them under threat of being accused of being publishers and not merely neutral content carriers.

While I agree Twitter and Facebook need to be more transparent, this can and will affect all public fora, and that has some frightening implications for any forum that has publicly viewable content.

Clarifying Federal Government Enforcement Capabilities

The third category of recommendations would increase the ability of the government to protect citizens from unlawful conduct, by making it clear that Section 230 does not apply to civil enforcement actions brought by the federal government. 

This basically says the federal government cannot be hamstrung by Section 230 if they deem fit. Generally sensible on the face of it, but the scope of this is very vague and outside of something like them imposing censorship of unlawful topics by their own initiative using civil enforcement methods, this concerns me as a stepping stone to a full-on censorship bureau of differing opinions unless this is given meticulous elaboration as to it's scope, effects, and limitations as a supplement to criminal prosecution.

Promoting Competition

A fourth category of reform is to make clear that federal antitrust claims are not, and were never intended to be, covered by Section 230 immunity.  Over time, the avenues for engaging in both online commerce and speech have concentrated in the hands of a few key players.  It makes little sense to enable large online platforms (particularly dominant ones) to invoke Section 230 immunity in antitrust cases, where liability is based on harm to competition, not on third-party speech.

This is basically saying the big names in social media and forums cannot stifle competition while hiding behind Section 230 to claim neutrality so long as they work to muscle out competition.

This isn't too objectionable really, but the scope is left rather disturbingly open-ended on this topic.

Some of these topics are covered in more detail here:

https://www.justice.gov/ag/department-justice-s-review-section-230-communications-decency-act-1996?utm_medium=email&utm_source=govdelivery

Specifically, the following parts:

1. Incentivizing Online Platforms to Address Illicit Content
The first category of potential reforms is aimed at incentivizing platforms to address the growing amount of illicit content online, while preserving the core of Section 230’s immunity for defamation. 

a. Bad Samaritan Carve-Out.  First, the Department proposes denying Section 230 immunity to truly bad actors.  The title of Section 230’s immunity provision—“Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material”—makes clear that Section 230 immunity is meant to incentivize and protect responsible online platforms.  It therefore makes little sense to immunize from civil liability an online platform that purposefully facilitates or solicits third-party content or activity that would violate federal criminal law. 

b. Carve-Outs for Child Abuse, Terrorism, and Cyber-Stalking. Second, the Department proposes exempting from immunity specific categories of claims that address particularly egregious content, including (1) child exploitation and sexual abuse, (2) terrorism, and (3) cyber-stalking.  These targeted carve-outs would halt the over-expansion of Section 230 immunity and enable victims to seek civil redress in causes of action far afield from the original purpose of the statute.

c. Case-Specific Carve-outs for Actual Knowledge or Court Judgments.  Third, the Department supports reforms to make clear that Section 230 immunity does not apply in a specific case where a platform had actual knowledge or notice that the third party content at issue violated federal criminal law or where the platform was provided with a court judgment that content is unlawful in any respect.

Section 1B is the scary one. The first two topics are unobjectionable, but how does one define cyberstalking exactly? Is it merely gaining access to information that is not publically available like medical records and financial stuff like credit card numbers and posting it so as to facilitate harm to someone, or can someone get busted for reposting public Facebook profiles and addresses/phone numbers gleaned from Whitepages.com?

The preventing of posting financials and medical records I'm down with, but the latter, while a dick move, is not and should not be criminal unless it is done with the clear intention to facilitate a crime like assault or murder. Otherwise, it's printing out the phonebook and posting it on a forum, and if we are going to make that criminal, phone companies are accessories to some heinous offenses.

My own records are available via public gleanings with a modest amount of effort. I've been doxed before, nothing that was exposed by it is something anyone could get by breaking laws, it was easily publicly sourced. The people who did it were doing so as part of a campaign to facilitate my getting upset and insult me, but that's not a crime. None of the information has been used to threaten my life or those related to me, so no crime was committed. Sure, I had some fools try to post that garbage to raise a personal army against me by manchildren with a grudge, but the threats were nothing more than internet edgelord crap any judge would laugh out of a courtroom under current law.

If they posted my bank account information, then that would be a crime, but that hasn't happened and my address and phone number do not constitute a criminal offense absent proven threats to harm my life and safety alongside that information with clear intent to act on that desire.

Basically, that cyberstalking part has the potential for chilling some nasty yet completely legal speech, and even if I admit it would please me to no end to see certain people who did such to me hamstrung with legal consequences, I'm not spiteful to want it to happen because it's a slippery slope that scares me with the implications long-term. 


Here is the other important section:

4. Promoting Open Discourse and Greater Transparency
A fourth category of potential reforms is intended to clarify the text and original purpose of the statute in order to promote free and open discourse online and encourage greater transparency between platforms and users.

a. Replace Vague Terminology in (c)(2).  First, the Department supports replacing the vague catch-all “otherwise objectionable” language in Section 230(c)(2) with “unlawful” and “promotes terrorism.”  This reform would focus the broad blanket immunity for content moderation decisions on the core objective of Section 230—to reduce online content harmful to children—while limiting a platform's ability to remove content arbitrarily or in ways inconsistent with its terms or service simply by deeming it “objectionable.” 

b. Provide Definition of Good Faith.  Second, the Department proposes adding a statutory definition of “good faith,” which would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and accompanied by a reasonable explanation, unless such notice would impede law enforcement or risk imminent harm to others.  Clarifying the meaning of "good faith" should encourage platforms to be more transparent and accountable to their users, rather than hide behind blanket Section 230 protections.

c. Explicitly Overrule Stratton Oakmont to Avoid Moderator’s Dilemma.  Third, the Department proposes clarifying that a platform’s removal of content pursuant to Section 230(c)(2) or consistent with its terms of service does not, on its own, render the platform a publisher or speaker for all other content on its service.

4a is generally fine. Basically, if it's not against actual law, it should remain up. 

So if I think illegal aliens (and I do) should be deported, that is not an unlawful opinion and no one should silence me for saying so. If I argued vigilantes should take the work of ICE into their own hands, then that would be illegal and not lawful for me to post because I would be encouraging a disruption of lawful authority by inciting others towards acting outside the law.

4a would protect the former and punish the latter, which is fair enough to me.

4b is also fine for the most part, but the definition of good faith needs some very well detailed fine print or we'd be no better off than we started and just shifting goalposts.

4c. Is just saying "if the speech is something no one is allowed to say, and all are penalized equally with clear reasoning, let it ride."

For example, let's say a forum has a hard "no-politics" rule outside one clearly designated area. Any politics outside that area is removed with prejudice, no matter the slant or bias.

That's pretty reasonable, so long as such is not implemented ex post facto or rules are changed without due notice or reverted on a whim to bother by the book.


Now, in conclusion, this is just suggestions by the DOD, none of this is actual law yet to my knowledge, but it's clear many politicians on both sides of the aisle are considering such changes, and while I'm not entirely opposed to some reforms, I have grave reservations as noted above how this could become a slippery slope we'll all regret later unless handled with the greatest care and respect for lawful expression.