EFF Section 230 Claims vs Reality
An infographic by EFF misleads and promotes censorship online.
Below is a critique of a popular EFF infographic extolling the virtues of Section 230. The infographic can be found below, with the numbers annotated.
1. "Under CDA 230, service providers…can't be forced to censor user content."
This claim is not just false, but the opposite is true. The existence of 230 itself has been used to force social media companies to censor users. Twitter and Facebook famously resisted using 230 to censor content based on its own views. They changed their stance after Congress threatened anti-trust action against them. Rather than prevent companies from censoring, Section 230 is the main tool that enabled Congress to force social media companies to censor - against their own better judgment. Without Section 230, Congress would have had no leverage to demand censorship, since the companies would have exposed themselves to liability by injecting their own editorial views into user content.
This is what is known as unintended consequences, and it often occurs when laws are passed without a full understanding of the legal environment. The drafters of Section 230 would likely maintain they did not intend for Section 230 to become a tool that a future Congress could use to pressure social media companies to censor at the behest of Congress, but this did occur. And it occurred because Section 230 gave overly broad power to online service providers that was ripe for abuse.
2. "Blogs, review sites, forums, and other sites that deal with controversial issues could be pressured to silence unpopular opinions."
Imagine saying this with a straight face at the same time that Section 230 has become controversial because of how it has been used to pressure these same sites to silence unpopular opinions. The law literally creates the problem the EFF claims it solves. Without Section 230, sites would resist calls to censor unpopular opinions, as doing so would turn them into publishers and they would incur publisher liability. Claiming the ability to censor unpopular opinions was exactly what caused Prodigy to be seen as a publisher in Stratton.
3. "Sites like Huffington Post, Facebook, Twitter, Google+, and Reddit could be sued every time a user crossed the line…Sites may feel pressure to limit real-time posts in order to review them to avoid liability…Sites would have to pay much, much more for [series of outrageous claims not supported by evidence]…"
These claims are all based on fundamentally misrepresenting Stratton. That case held that if you call yourself a newspaper (publisher) and you maintain policies that give you full editorial control over content, you are a publisher and that content is your expression. Groups like EFF misrepresent this holding to claim that all moderation makes you a publisher. It does not.
When pressed on this, EFF will resort to the claim that sites have to exercise full editorial control, otherwise every site will become 8chan. There is no evidence this is true - in fact, it is contradicted by how the Internet has evolved - even before Section 230 use became widespread. Facebook and Twitter resisted using the protections of Section 230 throughout their high growth periods. Yet neither service became 8chan. The only places that become like 8chan are the places that want to be like 8chan.
4. "Innovation would be diminished as new social media platforms and products would face new legal obstacles to getting started."
Yet another claim where the opposite is true. The underlying idea relies on misrepresenting the holding in Stratton, claiming that after Stratton all moderation made you a publisher, when Stratton said no such thing. Stratton's holding was much more limited than Section 230 advocates claim. It was also a lower state court decision and higher courts had yet to even weigh in on the topic. How to apply liability to the Internet was still being worked out by courts. Instead of letting this natural process occur, Congress stepped in and short-circuited it with a heavy-handed intervention that obliterated the rules for online providers.
The reality is that Section 230 represents a major artificial barrier to entry that protects the monopolies in social media from competition. Any company that wishes to compete is expected to have a massive censorship apparatus in place to satisfy the whims of both Congress and its competitors, who control access to large portions of critical Internet infrastructure. The social media company Parler failed to meet these demands and was subsequently erased from the Internet in anticompetitive actions that were demanded by members of Congress and cheered on by many political elites. This came at a critical time when Parler was threatening to become major competition.
In this environment, it is perhaps not surprising that TikTok has been one of the few companies that emerged and thrived. TikTok is a Chinese company and subject to the demands of the authoritarian Chinese state. TikTok utilized the protections of Section 230 to secretly censor political topics on behalf of the Chinese government. If Section 230 did not exist, TikTok would be recognized as a publisher for exercising this editorial control and would face liability for much of what is published. The potential liability would discourage them from becoming a publisher. The existence of Section 230 has enabled the Chinese government to dictate censorship on TikTok.
This state sponsored censorship is not an anomaly - it is widespread. Facebook and Twitter regular censor at the direction of the state of Israel, making pro-Palestinian groups one of the most censored groups online. Many countries globally lack free speech protections like those in the United States. The existence of Section 230 enables those governments to have leverage over social media to enforce their censorship programs for them. Without Section 230, these companies would face liability for this censorship and would resist foreign interference. Section 230 empowers authoritarian regimes to dictate what is seen on the Internet. It is surprising to see that groups like EFF think this is good for the Internet or society.
5. "Internet service providers might block access to some IP addresses based on legal threats."
Again, this is backwards. Section 230 has been used to pressure Internet service providers to block some IP addresses. After all, if they don't incur any liability as publishers for doing so, then why would they not do so aggressively? And why wouldn't Congress pressure or force them to use this power aggressively? Without Section 230, ISP editorial control over content would make them a publisher and incur liability. This would deter them from undertaking the functions of a publisher, which means they would be less likely to block addresses, lest a court view these actions as expression that incurs potential liability. In the case of Parler, ISPs were encouraged to block Parler's access to the Internet and encouraged to block user access to Parler. Without Section 230, these anticompetitive actions would not have been possible. Section 230 is a major enabler of IP address blocking by ISPs.
6. "Parody sites and politics forums could be particularly hard hit."
What does Section 230 have to do with parody protections in the 1st Amendment? It has nothing to do with it at all. How would parody websites be affected differently than offline parodies? They would not. Somehow parody has survived and thrived offline, without Section 230.
Political forums are the most negatively affected by Section 230. Open discussion is becoming impossible because online providers are allowed to edit the discussions and even prevent arguments they disagree with. There are many examples of this, but a striking example is that users who disagree with currently dominant thoughts around transgender issues are often censored and suspended by sites like Twitter. On many occasions simply for stating you disagree with a view. While on the other side, transgender activists have been allowed to openly advocate for the death of political opponents without censorship or suspension. It's unfathomable that an organization like EFF could think this is a positive development for free speech and open debate in society. But with Section 230 protecting them, Twitter is free to control online debates in this manner.
7. "Whistleblowers and corporate watchdogs could have trouble finding outlets for their information."
Why? They never had trouble finding them before the Internet. Finding outlets is not difficult. Other difficulties dissuade whistleblowers, but Section 230 has nothing to do with those problems. Does Section 230 protect whistleblowers from destruction of their career and/or personal life? Of course not.
If online sites publish the claims of anonymous whistleblowers, why shouldn't they be liable for those claims, just like offline publishers? Is the goal to encourage anonymous allegations, which dramatically increases the probability of false and defamatory allegations? Offline publishers have always been required to substantiate whistleblower claims precisely because the alternative is a barrage of defamation with no legal repercussions. This is how supermarket tabloids work. Is this the model we want to encourage online?
8. "Real life examples: countries that don't have CDA 230. [Laws in Thailand and Turkey]"
This is where the graphic gets really embarrassing for the EFF. First, the two laws listed here - in Thailand and Turkey - have nothing to do with Section 230. They are government speech restrictions that exist in countries without free speech rights.
To the extent that 230 has anything to do with these laws, IT ENABLES THEM. Without 230, social media companies would be unable to cooperate with these government restrictions on speech. They would be forced to choose between abandoning authoritarian markets or taking on the liability that enforcing these laws would entail as publishers. In some cases, governments would refrain from passing such laws, knowing that social media companies would not be able to enforce them (this would be more likely in democracies). Section 230 allows social media companies to dodge this choice. They can enter authoritarian countries and enforce authoritarian speech laws against their users, safe in the knowledge that US law cooperates with and enables foreign restrictions on speech by insulating the companies from the normal legal consequences. Thanks, Section 230.
Ironically, the CDA itself was exactly this type of law that restricted speech based on government dictates. The purpose of the CDA was the same as these repressive laws in Thailand and Turkey. And the Supreme Court struck most of the CDA down on 1st Amendment grounds. The EFF is ironically defending the last remnants of the US's own speech suppression law by (falsely) claiming that it defends against the speech suppression laws of other countries.
9. "Site operators and ISPs host and carry enormous amounts of speech and are in no position to evaluate the legality of what their users do."
Then don't! Prodigy got in trouble in Stratton not because a user did something wrong or illegal. They got in trouble because they told users they exercise complete editorial control over content and they maintained policies to make this happen. No one made them do this. They never had to advertise themselves as a newspaper. They didn't have to reserve the right to delete "bad advice" or "bad taste". They chose to do it because they thought being a publisher offered them a competitive advantage. Then they rejected the downsides of that choice. And rather than accept that, Congress created an unnecessary and broad exemption.
10. "As a result, many sites would simply take down users' content upon receiving a complaint if they could be held responsible for it."
That is exactly what sites do today, thanks to Section 230! Well, sort of. Since they have total immunity, sites apply their rules unevenly. If they receive a complaint about something they deem "controversial" and it espouses a view they disagree with, sites will remove it immediately, with no ability for the person to object. If the complaint is about something they agree with, they tend to reject the complaint. Unsurprisingly, this results in majoritarian views and views shared by powerful interests being reinforced, while dissenting views are suppressed. Is this how free speech in a democracy is supposed to work? Is this healthy? How can an organization like the EFF support this authoritarian speech regime? Section 230 enables sites to censor indiscriminately. In practice, this means they censor based on their own views, majority views, advertiser views, and government views. Dissent gets crushed under the weight of Section 230.
Organizations like EFF are rightfully critical of government suppression of speech. But private suppression of speech is often worse. With government suppression, laws exist that bring the suppression to light and voters can replace the offending politicians. This is not true of private speech suppression. How can the EFF heavily promote private suppression of speech - the form of speech suppression that is most prevalent in China?