Trump and his supporters clearly believe migrants have no
constitutional rights. But that’s simply not true. They have the same
rights as citizens for one truly obvious reason: a government could
choose to declare certain people non-citizens in order to strip them of
their rights. That would be highly problematic in a nation that’s almost
entirely the result of immigration, which is why courts have routinely
held that non-citizens have the same rights as citizens while on US
soil.
That’s still the case, for the most part. The Fifth Circuit — fulfilling its role as the preferred US Supreme Court understudy — has chosen to ignore literally hundreds of rulings
in favor of due process rights for immigrants to decide those no longer
exist in the states most migrants detained by the government get sent
to before being removed from the country.
Last November, the Trump administration’s efforts to eliminate due
process rights had been rejected by more than 100 judges in more than
200 cases. A few months later — and with a full-press surge happening in
Minneapolis, Minnesota — the number of rejections has spiked:
A POLITICO review of thousands of ICE detention cases found that at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.
While most of the mass deportation action is currently happening far
north of the Fifth Circuit (which covers Louisiana, Mississippi, and
Texas), arrested immigrants are often sent almost immediately to
detention facilities closer to the southern US border. Texas is, by far,
the most popular destination for ICE detainee flights.
The Fifth Circuit waited around until late Friday night to release this decision [PDF], presumably in hopes of seeing the backlash subside a bit before the judges were due back at the office. Steve Vladeck covers all the angles in his post on this abhorrent ruling, starting with how this is an insane conclusion to reach given that 3,000
cases around the country have upheld the same rights the Fifth Circuit
has chosen to deny to any migrant with the misfortune of finding
themselves in its jurisdiction.
Well, late Friday night, in a ruling handed down just two days after oral argument,
a divided panel of the U.S. Court of Appeals for the Fifth Circuit
adopted the extreme minority view—holding that, yes, the government can
indefinitely detain without bond millions of non-citizens who have been
here for generations; who have never committed a crime; and who pose
neither a risk of flight nor any threat to public safety. The Fifth
Circuit’s opinion was written by Judge Edith Jones and joined in full by
Judge Kyle Duncan—two of the most reactionary, right-wing federal
appellate judges in the country…
The obvious upshot of this decision is that ICE et al will be rushing
detainees to Texas ASAFP to take advantage of this ruling.
As Aaron Reichlin-Melnick from the American Immigration Council noted last night,
the Fifth Circuit’s decision will “fuel ICE’s push to transfer people
to Texas immediately,” and it will put “even more pressure on plaintiffs
and district courts outside the 5th Circuit. Unless the habeas is filed
before a person is transferred to the 5th Circuit, a person may remain
locked in appalling conditions, never even allowed to ask for bond.” All
of that can be traced to another procedural technicality—the principle
that a district court gains jurisdiction over a habeas petition if, but
only if, it is filed while the petitioner is physically in that court’s
jurisdiction. In other words, to avoid being subject to the Fifth
Circuit’s decision (while it remains on the books), detainees arrested
elsewhere would have to have someone file on their behalf before they’re
physically transferred into the Fifth Circuit.
There’s still a chance that people arrested in, say, Minneapolis,
Minnesota might be able to avoid the Fifth Circuit’s refusal to
recognize their due process rights. But the denial of due process rights
begins immediately in most cases, with ICE officers refusing to allow detainees to contact family members,
much less seek legal representation. If ICE can get them on a plane
headed south before anything is filed in local courts, the Fifth
Circuit’s ruling will override whatever rights migrants might have still
had access to in the states they were removed from.
An appeal of this decision is already in process. And while it’s
concerning that this particular iteration of the Supreme Court will be
handling it, it’s not a foregone conclusion that it will convert the
Fifth’s ruling into nationwide precedent. Even at its worst, the Supreme
Court has rejected a handful of Fifth Circuit rulings that cross the
line into an open embrace of violent fascism. On the other hand, this
version of the Supreme Court is far more prone to deliver wordless
rubber stamps of appellate decisions it likes, so some caution is
warranted.
This decision requires the most MAGA-coded judges in the Fifth to buy
everything the Trump administration is selling. And what it’s selling
is a brand new interpretation of the phrase “seeking admission.” Rather
than limiting it to people crossing the border illegally, it applies
this definition to any migrant who doesn’t have the proper paperwork,
even if they arrived in this country decades ago.
The dissent, written by Judge Dana Douglas, makes it clear that this
administration will do anything and everything that serves its racist
desire to eject non-whites from the United States.
The Congress that passed IIRIRA (Illegal Immigration Reform and
Immigrant Responsibility Act [1996]) would be surprised to learn it had
also required the detention without bond of two million people. For
almost thirty years there was no sign anyone thought it had done so, and
nothing in the congressional record or the history of the statute’s
enforcement suggests that it did. Nonetheless, the government today
asserts the authority and mandate to detain millions of noncitizens in
the interior, some of them present here for decades, on the same terms
as if they were apprehended at the border.
Do you want to be this shitty, Judge Douglas asks the judges who
pretended this sort of thing is OK as long as it’s Trump doing it.
The majority stakes the largest detention initiative in American
history on the possibility that “seeking admission” is like being an
“applicant for admission,” in a statute that has never been applied in
this way, based on little more than an apparent conviction that Congress
must have wanted these noncitizens detained—some of them the spouses,
mothers, fathers, and grandparents of American citizens. Straining at a
gnat, the majority swallows a camel. I dissent.
Hopefully this ruling will be reset by the Supreme Court or an en banc
rehearing. But for now, the law of the land in three states that are
willing to house ICE detainees says due process rights are only
available in the 47 states the Fifth Circuit doesn’t control.
If you watched NBC’s prime time broadcast of the Winter Olympics
opening ceremony on Friday, you saw Vice President JD Vance in the
stands at San Siro Stadium in Milan with his wife, Usha. The commentary
team said “JD Vance” and moved on. Pleasant enough.
But if you were watching literally any other country’s broadcast—or were actually in the stadium—you heard something else: the crowd booing. Loudly. Jeering. Whistling. CBC’s commentator captured the moment awkwardly:
There is the vice-president JD Vance and his wife Usha – oops,
those are not … uh … those are a lot of boos for him. Whistling,
jeering, some applause.
Multiple journalists on the ground reported the same thing. The
Guardian’s Sean Ingle noted the boos. USA Today’s Christine Brennan
noted the boos. The boos were, by all accounts, quite audible to anyone
actually present in the stadium.
Timothy Burke put together clips of many other countries broadcasts,
many of which called out the boos or discussed criticism of the Trump
admin:
Mexico’s broadcast went on at length, including discussing how the US
had to change the name of their Olympic village from “ice house” to
“winter house” knowing how it would be perceived.
But if you were watching NBC’s broadcast in the United States? Crickets. As the Guardian reported:
However, on the NBC broadcast the boos were not heard or remarked
upon when Vance appeared on screen, with the commentary team simply
saying “JD Vance”. That didn’t stop footage of the boos being circulated
and shared on social media in the US. The White House posted a clip of
Vance applauding on NBC’s broadcast without any boos.
For what it’s worth, NBC denies that it “edited”
the crowd booing the Vances. But the analysis on that page by the folks
at Awful Announcing show pretty clearly that NBC (which ran a live feed
of the opening ceremony as well as a prime time version) turned up the
sound of music at the moment the Vances were shown on the screen.
Now, look. As a technical and legal matter, NBC has every right to
make that editorial choice. Broadcasters exercise editorial discretion
over their coverage all the time. They choose camera angles, they choose
what to amplify and what to downplay, they shape narratives. That’s not
illegal. It’s not even unusual. It’s called being a media company. The
First Amendment protects editorial discretion—including editorial
discretion that results in coverage that makes politicians look better
than reality would suggest.
Of course, that principle cuts both ways. Or at least it should.
We’ve now spent months watching Donald Trump file lawsuit after
lawsuit against news organizations for what he claims is “unfair”
editing. The theory in these cases is that editing footage in ways that
make Trump or his allies look bad is somehow actionable defamation or
election interference. It’s a theory that, if accepted, would basically
mean the president gets veto power over how he’s portrayed in any news
coverage.
Remember, Trump sued CBS
over a “60 Minutes” interview with Kamala Harris, claiming that the way
the interview was edited amounted to “election and voter interference.”
That lawsuit was, to put it charitably, legally incoherent nonsense. We
covered it at the time, noting that Trump’s supposed smoking gun was
that CBS edited an answer for time—you know, the thing every television
program in history does, including cutting out the bits that make Trump look bad.
Then there was the $10 billion lawsuit
against the BBC over a documentary that didn’t even air in the United
States. Trump’s legal team actually cited VPN download statistics as
evidence of damages, apparently believing that Americans who went out of
their way to circumvent geographic restrictions to watch a documentary
they weren’t supposed to see somehow constitutes harm to Trump.
Of course, as you already know, CBS, facing the Trump lawsuit while
also trying to get FCC approval for the Paramount merger, decided to
just… pay up. We called it what it was at the time: a $16 million bribe.
Not because CBS thought Trump had a valid legal claim—the lawsuit was
obviously baseless—but because CBS was terrified that an angry Trump
administration would tank its merger if it didn’t make the lawsuit go
away.
And that’s the point. The lawsuits aren’t really about winning in
court. They’re about establishing a new norm: favorable coverage or
else.
So now we have NBC, which happens to have a rather large interest in
staying on the good side of this administration (what with the LA
Olympics coming up in 2028 and all the broadcast rights that entails,
and you already have Trump and FCC boss Brendan Carr threatening NBC’s
late-night comedy hosts), making an editorial choice to mute crowd boos
directed at the vice president. And I will bet you every meager dollar I
have that no one in Trump’s orbit will say a single word about NBC’s
“unfair” editing. No tweets from Trump about “fake news NBC” cutting
audio to misrepresent crowd reactions. No lawsuits alleging that NBC’s
editorial choices constitute fraud on the American public.
Because the “unfair editing” complaints were never actually about
editing. They were about whether the editing made Trump look good or
bad. Editing that cuts out boos? That’s just good production values.
Editing that makes Harris’s answer seem more coherent? That’s election
interference worthy of billions in damages.
This is what an attack on press freedom looks like. It’s not a single
dramatic moment. It’s a slow accretion of pressure—lawsuits that are
expensive to fight even when you win, regulatory approvals that get held
hostage, implicit threats that keep executives up at night—until media
companies internalize the lesson. The lesson isn’t “be accurate” or “be
fair.” The lesson is: make us look good, or face the consequences.
This past weekend Section 230 turned 30 years old. In those 30
years it has proven to be a marvelous yet misunderstood law, often
gravely, as too many, including in Congress and the courts, mistakenly
blame it for all the world’s ills, or at least those that happen in some
connection with the Internet. When in reality, Section 230 is not why
bad things happen online, but it is why good things can happen.
And it’s why repealing it, or even “just” “reforming” it, will not stop
the bad, but it will stop the good.
Unfortunately, even 30 years in, these ignorant efforts to diminish or even outright delete the law continue,
despite the harm that would result if they succeeded. Which is why this
anniversary seems like a good time to review why many of the reasons
why the hostility towards Section 230 is so misplaced. Here at Techdirt
we’ve collectively all spilled a lot of digital ink over the years about
why Section 230’s critics are wrong
to condemn it, and not just a little bit but completely and utterly, as
well as counter-productively. But on this celebratory occasion I
thought it would be fun to look back on what I personally have written
about Section 230—at least since its 20th birthday celebration and the piece I wrote then—and
collect some of these “greatest hits” in a post to help get anyone new
to thinking about Section 230, who may be unsure why those pushing to
repeal it is so misguided, caught up on why Section 230 is not a law we
should be messing with.
What Section 230 does. One reason that people get Section 230 wrong is that there are a lot of myths
about it and what it does or does not do. A good place to start is with
an overview of how it generally works, and if you like watching videos
you can watch this presentation from a few years ago where I gave a crash course in its operation.
In short, though, Section 230 immunizes platform providers from
liability in two key ways: for liability in what their users use their
services for, and for liability that could possibly result in how they
moderate their users’ use of their services. Section 230 aligns
platforms providers with Congress and makes it possible for them to work
towards what Congress wants—the most good material online, and the
least bad—by making it legally possible for the providers to do the best
they can to achieve it on both fronts. If it is legally safe for them
to allow user expression, because they won’t have to fear being liable
for it, they will allow the most good expression, and if it is legally
safe for them to remove user expression, because they won’t have to fear
being liable for their moderation, then, as this post explains, they will be able to remove the most that is bad.
But Section 230 is not some sort of special favor for Big Tech, as some have suggested. It’s not even one for startups, as others have alleged. In fact, it applies to regular people as much as it applies to anyone. Rather than it being any sort of subsidy, it instead operates more like a rule of civil procedure
to make sure that platforms cannot be drained of resources having to
defend themselves for whatever wrong a user’s conduct is accused. Which
is also why “reforming” Section 230 effectively means repealing it, because nearly all the proposed reforms
would make the statutory protection more conditional, but if platforms
are unsure about whether they are protected or not and in jeopardy of
having to litigate the question, then for all intents and purposes they
are effectively unprotected, and they will act accordingly to
defensively either deny more beneficial content, or leave up too much
that is harmful (or both).
When Section 230 applies. One of the common myths about
Section 230 is that it prevents anyone from ever being held responsible
for how the Internet has been used. Not so; Section 230 does nothing to
prevent anyone from being accountable for their own behavior. What it
does not allow, however, is someone else being held
accountable, namely the provider of the platform service they used,
because, as discussed above, if the platform could have to answer for
how any of their users used their services, they would never be able to
offer their services, and if they couldn’t offer their services then
there would be no Internet for anyone to use even for any of the good,
useful, or important things we use it for.
Section 230 also doesn’t immunize platforms for their own actions, only those of their users. The issue sometimes is in telling the two apart, but as this post
argues, it’s not actually as hard to figure out as some people would
insist. First, the idea that there is some publisher/platform
distinction is a fiction;
the only thing that matters is whether the immune provider is providing
an interactive computer service of some sort and someone else has
provided the content, or if the platform has provided the content
itself. And in the event we get confused about who the content provider
is, we can look to see who imbued
the offending expression with its allegedly wrongful quality, which
more often than not is the user and not the platform. As we’ve
understood since the Roommates.com case, that a platform has simply
welcomed the expression isn’t enough to put the platform on the hook for it.
Why Section 230 is important. Regulators can be tempted to take swings
at Section 230 because it can be tempting to try to control what can be
said on the Internet, and Section 230 gets in the way of those efforts.
While the First Amendment also protects platforms’ ability to choose
what user expression to facilitate, Section 230 makes that protection
meaningful by making those choices practically possible. When they
cannot be freely made, then the user expression they facilitate takes a
hit.
Here’s what’s strange about Section 230 of the Communications
Decency Act, the law that made the open internet possible: Both sides of
the traditional political spectrum hate it. But for opposite reasons. That, alone, should highlight that something is wrong in their analysis.
Republicans hate it because they say it lets websites censor
conservative speech. Democrats hate it because they say it lets websites
host dangerous disinformation.
Read those two sentences again.
One side is furious that platforms can moderate. The other side is furious that platforms don’t have to
moderate. Both sides are attacking the same 26-word provision of a
30-year-old law—and if you understand why their complaints are
contradictory, you understand what Section 230 actually does.
This weekend marked the 30th anniversary of the Telecommunications
Act of 1996, which contained the mostly unconstitutional Communications
Decency Act, which inexplicably contained Section 230. (If you want the
full history, I hosted a podcast series about it
last year.) And after three decades, there’s now a concerted,
bipartisan effort to kill it—by people who either don’t understand what
the law does, or understand perfectly well and see its destruction as a
path to controlling the flow of information online.
Both critiques, stripped of their partisan framing, are about the same thing: who gets to control what speech appears where. And Section 230’s answer to both sides is the same: pound sand.
That’s what the law actually does. It doesn’t mandate or prohibit
“censorship.” It doesn’t require neutrality (that’s a myth that won’t
die). It simply says: if you have a problem with content online, take it
up with the person who created it, not the service hosting it.
Platforms can moderate however they see fit—aggressively, lightly,
inconsistently, politically—and they won’t face ruinous liability for
those choices. They also won’t face liability for what they don’t remove.
This is what makes an open internet possible. Without that
protection, no service would risk hosting user content at all. Or if
they did, every moderation decision would require a lawyer’s sign-off,
optimizing for liability reduction rather than healthy communities. The
people who actually understand how to build good online spaces—trust and
safety professionals, community managers—would be overruled by legal
departments playing defense.
Almost all criticism of Section 230 is not actually about Section
230. It’s about one of two things: (1) not liking something in society
that manifests online, and incorrectly believing that changing the law
will somehow fix it, or (2) wanting control over what content platforms
host.
So what happens if critics get their way? There’s a lobbying campaign
right now claiming that reforming or repealing 230 will lead to
“greater responsibility from tech companies.”
This is exactly backwards.
Without 230’s protections, smaller platforms—the ones that might
actually compete with the giants—get destroyed first. They can’t afford
the vexatious lawsuits. They can’t afford buildings full of lawyers. The
big players survive, and their market position gets locked in even
harder.
And those surviving giants won’t become more responsible. They’ll
become less. Any competent legal team will tell them: the less you know,
the less liability you have. Don’t proactively look for harmful
content. Don’t research how your platform causes harm—those findings
would be exhibit A in every lawsuit. Just stick your head in the sand
and let the lawyers handle the subpoenas.
This is how liability regimes work, and America’s exceptionally
litigious legal culture makes these incentives even stronger. The
critics either don’t understand this or don’t care, because their actual
goal was never “responsibility.” It was control. That they’ve duped
some tech critics into thinking it’s about “responsibility” or “safety”
doesn’t change that. Because it won’t improve responsibility or safety.
But it will give politicians tremendous power over online speech.
Thirty years ago, a 26-word provision buried in a mostly
unconstitutional law kicked off the open internet. It let anyone build a
platform, host a community, create something new—without needing
permission from lawyers or regulators first. That era is now under
direct attack by people who misrepresent what Section 230 does and
misrepresent what killing it would mean.
The open web turned 30 this weekend. The bipartisan campaign to kill
it was never about responsibility or safety, it was always about
control. Whether the open web sees age 31 comes down to 26 words that
tell both sides to pound sand.
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The Telecommunications Act of 1996 became
law thirty years ago today, on February 8, 1996. Buried in a corner of
that sprawling law was Section 230, a law that says websites aren’t
liable for third-party content.
Section 230 didn’t receive much attention when it was passed, but it
has since emerged as one of Congress’ most important media laws ever.
Section 230 helped trigger the Web 2.0 era–where people principally talk
with each other online, rather than just having content broadcast at
them one-way. By enabling that discourse and other new categories of
human interaction, Section 230 has thus reshaped the Internet and, by
extension, our economy, our government, and our society.
To commemorate Section 230’s 30th anniversary, this post considers Section 230’s past, present, and future.
* * *
Section 230’s Past
“Big Tech” Didn’t Lobby for Section 230. Google and
Facebook didn’t exist in 1996; they emerged in the wake of Section 230’s
passage. In 1996, the Internet industry was small, especially as
compared to other media industries like cable or telephony. However, AOL
played a key role in Section 230’s passage, as evidenced by the fact
Section 230 uses statutory terms like “interactive computer service” and
“information content provider” (a really terrible phrase) that mirror AOL’s idiosyncratic jargon.
The Internet Industry Didn’t Initially Celebrate Section 230’s Passage. I’m
not aware of any fetes in 1996 that celebrated Section 230’s passage.
That’s because Section 230 was overshadowed by another part of the
Telecommunications Act of 1996, the Communications Decency Act (CDA).
The CDA imposed an unmanageable risk of criminal liability on Internet
companies for user-generated content, so Internet executives were
panicked that they might go to jail for the ordinary operation of their
services. There was no time to get excited about Section 230’s long-term
implications in the face of the immediate threat of criminal
prosecution.
A week after the act’s passage, a district court enjoined the CDA,
and the industry panic slightly abated. The industry relaxed a little
more when the Supreme Court struck down the CDA as unconstitutional in
1997 (the Reno v. ACLU decision).
However, that relief was short-lived because Congress quickly passed
another law to criminalize user-generated content (the Child Online Protection Act of 1998,
ultimately declared unconstitutional). So for years after Section 230’s
passage, the industry was preoccupied by Congress’ UGC criminalization
efforts.
Section 230’s Impact Wasn’t Immediately Clear. Section
230 includes some unusual and non-intuitive statutory language. As a
result, the Internet industry wasn’t initially sure exactly what it
said. Section 230’s potential scope only started to emerge after the district court ruling in Zeran v. AOL in March 1997. Then, after the Zeran v. AOL Fourth Circuit opinion in
November 1997, it became clearer that Section 230 had reshaped the law
of user-generated content. For more on the Zeran case, see this ebook.
Section 230 Left Open a Problematic “Copyright Hole.” Section
230 expressly excludes intellectual property claims based on
third-party content. As a result, even after Section 230 passed,
Internet services still faced potential secondary copyright liability
with no statutory protection from Congress.
In particular, vicarious copyright infringement turns on a service’s
“right and ability to control” the content on its servers, and
plaintiffs can cite a service’s content moderation efforts–including
those otherwise immunized by Section 230–as inculpatory evidence. In
other words, Section 230 didn’t immediately legalize content moderation,
because default copyright law still made those practices legally risky.
Two-plus years later, Congress partially plugged Section 230’s copyright hole in the Digital Millennium Copyright Act of 1998.
In contrast to Section 230’s unconditional immunity for UGC, the DMCA
created a notice-and-takedown liability scheme for user-caused copyright
infringement. However, it took years for court cases to confirm that
standard content moderation efforts didn’t increase services’ copyright
liability for user-generated content.
Due to its unusual drafting and the legal context surrounding it,
Section 230 didn’t definitively resolve the legitimacy of user-generated
content and content moderation efforts when it passed in 1996. That
implication took several more years to emerge.
Section 230 Offers Critical Procedural Benefits. Critics,
politicians, and the media often focus their fire on Section 230’s
substantive scope, such as how it compares to the First Amendment and
whether it strikes the right policy balances. However, much of Section 230’s “magic” is procedural, not substantive.
Section 230 provides courts with a helpful way of quickly dismissing
unmeritorious cases. This, in turn, reduces defendants’ costs and
increases their confidence of winning in court; and this further
emboldens services to optimize their editorial policies for their
audiences, engage in content moderation to effectuate those policies,
and legally defend individual items of user-generated content. Even if
the First Amendment dictated all of the same substantive outcomes as
Section 230 (it doesn’t), Section 230 provides greater procedural
predictability to the parties and thus achieves superior outcomes.
Section 230 Affects a Lot of Court Cases. According
to the Shepard’s citation service, Section 230 has been cited in over
1,700 cases. As this figure indicates, citations keep going up:
Section 230 Discourages Many Lawsuits From Ever Being Filed. Section
230 has largely extinguished the genre of lawsuits against Internet
services for their individual content moderation decisions. Without
Section 230, every content moderation decision might prompt a lawsuit,
manufacturing millions of potential lawsuits every day.
Section 230’s Drafters Future-Proofed the Law.
Section 230 critics often highlight its adoption during the Internet’s
infancy, as if that’s proof the law is not appropriate for the modern
mid-2020s Internet. In 2020, Sen. Wyden and former Rep. Christopher Cox,
the authors of Section 230, responded:
[Critics] assert that Section 230 was conceived as a way to
protect an infant industry, and that it was written with the antiquated
internet of the 1990s in mind – not the robust, ubiquitous internet we
know today. As authors of the statute, we particularly wish to put this
urban legend to rest…our legislative aim was to recognize the sheer
implausibility of requiring each website to monitor all of the
user-created content that crossed its portal each day…
The march of technology and the profusion of e-commerce business
models over the last two decades represent precisely the kind of
progress that Congress in 1996 hoped would follow from Section 230’s
protections for speech on the internet and for the websites that host
it. The increase in user-created content in the years since then is both
a desired result of the certainty the law provides, and further reason
that the law is needed more than ever in today’s environment.
* * *
Section 230’s Future
[TL;DR: ]
Congress Has Begun Chipping Away at Section 230. Congress has made two crucial reductions in Section 230’s scope in the past decade. In 2018, in FOSTA, Congress amended Section 230 to exclude immunity for commercial sex promotions. Then, last year, Congress passed the TAKE IT DOWN Act, which apparently overrides Section 230 to establish a notice-and-takedown scheme for intimate visual depictions.
Congress Could Repeal Section 230 at Any Moment. No
politically powerful constituencies still publicly support Section 230.
If a floor vote for a Section 230 repeal bill were scheduled in the
House or Senate, I expect the repeal would pass by overwhelming margins.
Courts Are Repealing Section 230 Without Any Help From Congress. In 2024, in Anderson v. TikTok,
the Third Circuit functionally repealed Section 230 in its circuit. The
court said that any service that qualifies for First Amendment
protections (which all online content publishers do) simultaneously
cannot qualify for Section 230.
Separately, throughout the country, plaintiffs are pushing courts to
hold websites liable for how they design their services because (they
argue) such design choices are outside of Section 230’s scope. This
argument is extremely problematic. A service’s “design choices” are
synonymous with a publisher’s editorial decisions about how to gather,
organize, and disseminate content. These are the kind of activities the
First Amendment ought to protect. Further, for social media services
that principally republish third-party content, “negligent design”
claims could impose liability for that content–exactly what Section 230
should prevent. So long as courts are open to lawsuits over “design
choices” and don’t apply Section 230 to those claims, plaintiffs will
erode Section 230’s legal protections.
The Internet’s Future is Dire, Regardless of Section 230’s Fate. Fueled
by the techlash, especially panics about children’s online usage,
regulators are passing a tsunami of laws to regulate every aspect of how
online publishers gather, organize, and disseminate content. Many of
these laws are unconstitutional and violate Section 230, but legislators
pay little heed to such concerns. Even if courts strike down most of
these laws, the surviving laws will reshape how the Internet works.
In particular, legislatures are enacting laws that require online
publishers to age-authenticate their users. These laws will have dramatic and universally negative consequences for the Internet,
including raising publisher costs, shrinking publishers’ audiences,
rewarding incumbents over startups, and creating massive privacy and
security risks.
For these reasons, you should not assume that the Internet in 5 or 10
years will bear any resemblance to what we love most about the Internet
today–no matter what Congress does to Section 230.
* * *
About the Author: Prof. Eric Goldman is Associate Dean for
Research and Co-Director of the Datta Center for High Tech Law at Santa
Clara University School of Law. He began practicing as an Internet
lawyer, and teaching an Internet Law course, before Section 230 became
law.
* * *
Want to read even more on Section 230? Check out some of my other articles on the topic:
Today is also the 30th anniversary of John Perry Barlow’s essay, “A Declaration of the Independence of Cyberspace,” his fever-dream response to the CDA’s passage. The opening paragraph is exquisite:
Governments of the Industrial World, you weary giants of flesh
and steel, I come from Cyberspace, the new home of Mind. On behalf of
the future, I ask you of the past to leave us alone. You are not welcome
among us. You have no sovereignty where we gather.
This essay is a culturally significant artifact because it had a
tremendous impact on the mid-1990s discussions about Internet
exceptionalism–even though the essay was always misguided and naive and
has aged poorly.
This article was originally published on the Technology & Marketing law blog. Republished here with permission.
My biggest complaints with AI tend to be with the human beings
who are rushing language learning models into mass adoption without
doing their basic due diligence. Like AI toy maker Bondu, the creator of
“AI” enabled stuffed animals, which recently left the stored chat logs
children have with their polyester-filled automated friends openly available online to anybody with a Gmail account:
“[security researcher Joel Margolis] made a startling discovery:
Bondu’s web-based portal, intended to allow parents to check on their
children’s conversations and for Bondu’s staff to monitor the products’
use and performance, also let anyone with a Gmail account access transcripts of virtually every conversation Bondu’s child users have ever had with the toy.”
At this point there’s just no excuse for this sort of thing. We’ve been writing for more than a decade
about how most “smart,” internet-connected toys were being rushed to
market without adequate privacy and security safeguards, creating OpSec
risks for kids before they’ve even been adequately potty trained.
Now, as we’ve done in sectors like health insurance and journalism,
we’ve slathered half-cooked language learning models all over existing
dysfunction we refused to address, called it innovation, and then
ignored the fact we’ve introduced entirely new problems.
In this case, the included exposed data included kids’ names, birth
dates, family member names, and even the detailed summaries and
transcripts of every previous chat between the child and their Bondu
stuffed animals.
On the plus side, once alerted, the company quickly fixed the issue
in a matter of minutes. And when asked by journalists about it, didn’t
try to lie about the problem (a low bar, but still):
“When WIRED reached out to the company, Bondu CEO Fateen Anam
Rafid wrote in a statement that security fixes for the problem “were
completed within hours, followed by a broader security review and the
implementation of additional preventative measures for all users.” He
added that Bondu “found no evidence of access beyond the researchers
involved.”
If hackers are clever they don’t leave many footprints, so that last bit might not be worth much.
One recent survey found that 84 percent of Americans want tougher privacy laws. But corruption has ensured that the country still lacks even baseline
internet-era privacy protections. The powers that be have decided,
repeatedly, to prioritize mass commercialized surveillance over public
safety, and it’s only a matter of time before those chickens come home
to roost in ways we can’t even begin to consider.
There is no reforming or retraining this level of institutional
rot. Your centrist asses need to start demanding the abolishment of ICE
(and DHS), and you need to start doing it now.
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