On Its 30th Birthday, Section 230 Remains The Lynchpin For Users’ Speech

20 hours 5 minutes ago

For thirty years, internet users have benefited from a key federal law that allows everyone to express themselves, find community, organize politically, and participate in society. Section 230, which protects internet users’ speech by protecting the online intermediaries we rely on, is the legal support that sustains the internet as we know it.

Yet as Section 230 turns 30 this week, there are bipartisan proposals in Congress to either repeal or sunset the law. These proposals seize upon legitimate concerns with the harmful and anti-competitive practices of the largest tech companies, but then misdirect that anger toward Section 230.

But rolling back or eliminating Section 230 will not stop invasive corporate surveillance that harms all internet users. Killing Section 230 won’t end to the dominance of the current handful of large tech companies—it would cement their monopoly power

The current proposals also ignore a crucial question: what legal standard should replace Section 230? The bills provide no answer, refusing to grapple with the tradeoffs inherent in making online intermediaries liable for users’ speech.

This glaring omission shows what these proposals really are: grievances masquerading as legislation, not serious policy. Especially when the speech problems with alternatives to Section 230’s immunity are readily apparent, both in the U.S. and around the world. Experience shows that those systems result in more censorship of internet users’ lawful speech.

Let’s be clear: EFF defends Section 230 because it is the best available system to protect users’ speech online. By immunizing intermediaries for their users’ speech, Section 230 benefits users. Services can distribute our speech without filters, pre-clearance, or the threat of dubious takedown requests. Section 230 also directly protects internet users when they distribute other people’s speech online, such as when they reshare another users’ post or host a comment section on their blog.

It was the danger of losing the internet as a forum for diverse political discourse and culture that led to the law in 1996. Congress created Section 230’s limited civil immunity  because it recognized that promoting more user speech outweighed potential harms. Congress decided that when harmful speech occurs, it’s the speaker that should be held responsible—not the service that hosts the speech. The law also protects social platforms when they remove posts that are obscene or violate the services’ own standards. And Section 230 has limits: it does not immunize services if they violate federal criminal laws.

Section 230 Alternatives Would Protect Less Speech

With so much debate around the downsides of Section 230, it’s worth considering: What are some of the alternatives to immunity, and how would they shape the internet?

The least protective legal regime for online speech would be strict liability. Here, intermediaries always would be liable for their users’ speech—regardless of whether they contributed to the harm, or even knew about the harmful speech. It would likely end the widespread availability and openness of social media and web hosting services we’re used to. Instead, services would not let users speak without vetting the content first, via upload filters or other means. Small intermediaries with niche communities may simply disappear under the weight of such heavy liability.

Another alternative: Imposing legal duties on intermediaries, such as requiring that they act “reasonably” to limit harmful user content. This would likely result in platforms monitoring users’ speech before distributing it, and being extremely cautious about what they allow users to say. That inevitably would lead to the removal of lawful speech—probably on a large scale. Intermediaries would not be willing to defend their users’ speech in court, even it is entirely lawful. In a world where any service could be easily sued over user speech, only the biggest services will survive. They’re the ones that would have the legal and technical resources to weather the flood of lawsuits.

Another option is a notice-and-takedown regime, like what exists under the Digital Millennium Copyright Act. That will also result in takedowns of legitimate speech. And there’s no doubt such a system will be abused. EFF has documented how the DMCA leads to widespread removal  https://www.eff.org/takedownsof lawful speech based on frivolous copyright infringement claims. Replacing Section 230 with a takedown system will invite similar behavior, and powerful figures and government officials will use it to silence their critics.

The closest alternative to Section 230’s immunity provides protections from liability until an impartial court has issued a full and final ruling that user-generated content is illegal, and ordered that it be removed. These systems ensure that intermediaries will not have to cave to frivolous claims. But they still leave open the potential for censorship because intermediaries are unlikely to fight every lawsuit that seeks to remove lawful speech. The cost of vindicating lawful speech in court may be too high for intermediaries to handle at scale.

By contrast, immunity takes the variable of whether an intermediary will stand up for their users’ speech out of the equation. That is why Section 230 maximizes the ability for users to speak online.

In some narrow situations, Section 230 may leave victims without a legal remedy. Proposals aimed at those gaps should be considered, though lawmakers should pay careful attention that in vindicating victims, they do not broadly censor users’ speech. But those legitimate concerns are not the criticisms that Congress is levying against Section 230.

EFF will continue to fight for Section 230, as it remains the best available system to protect everyone’s ability to speak online.

Aaron Mackey

RIP Dave Farber, EFF Board Member and Friend

20 hours 10 minutes ago

We are sad to report the passing of longtime EFF Board member, Dave Farber. Dave was 91 and lived in Tokyo from age 83, where he was the Distinguished Professor at Keio University and Co-Director of the Keio Cyber Civilization Research Center (CCRC).  Known as the Grandfather of the Internet, Dave made countless contributions to the internet, both directly and through his support for generations of students.  

Dave was the longest-serving EFF Board member, having joined in the early 1990s, before the creation of the World Wide Web or the widespread adoption of the internet.  Throughout the growth of the internet and the corresponding growth of EFF, Dave remained a consistent, thoughtful, and steady presence on our Board.  Dave always gave us credibility as well as ballast.  He seemed to know and be respected by everyone who had helped build the internet, having worked with or mentored too many of them to count.  He also had an encyclopedic knowledge of the internet's technical history. 

From the beginning, Dave saw both the promise and the danger to human rights that would come with the spread of the internet around the world. He committed to helping make sure that the rights and liberties of users and developers, especially the open source community, were protected. He never wavered in that commitment.  Ever the teacher, Dave was also a clear explainer of internet technologies and basically unflappable.  

Dave also managed the Interesting People email list, which provided news and connection for so many internet pioneers and served as model for how people from disparate corners of the world could engage in a rolling conversation about all things digital.  His role as the Chief Technologist at the U.S. Federal Communications Commission from 2000 to 2001 gave him a strong perspective on the ways that government could help or hinder civil liberties in the digital world. 

We will miss his calm, thoughtful voice, both inside EFF and out in the world. May his memory be a blessing.  

Cindy Cohn

【神奈川支部リポート】 知ってますか? 軍転法 横須賀の平和運動家に聞く=藤森 研

21 hours 58 minutes ago
 クイズです。横須賀、呉、佐世保、舞鶴の4市に共通するのは何?戦前、海軍の「鎮守府」があった。正解です。では戦後は?海上自衛隊の地方総監部がある。正解です。 それから、この4市にだけ旧軍港市転換法(軍転法)が適用されている、というのも正解です。 この法律を、筆者は全く知りませんでした。昨年10月の神奈川支部の例会に、非核市民宣言運動・ヨコスカの中心メンバー、新倉裕史さんを招いて講演してもらい、その後も横須賀市の事務所を訪れて話を聞きました。 「軍転法」は第1条で「この法律は、..
JCJ

Op-ed: Weakening Section 230 Would Chill Online Speech

22 hours 39 minutes ago

(This appeared as an op-ed published Friday, Feb. 6 in the Daily Journal, a California legal newspaper.)

Section 230, “the 26 words that created the internet,” was enacted 30 years ago this week. It was no rush-job—rather, it was the result of wise legislative deliberation and foresight, and it remains the best bulwark to protect free expression online.

The internet lets people everywhere connect, share ideas and advocate for change without needing immense resources or technical expertise. Our unprecedented ability to communicate online—on blogs, social media platforms, and educational and cultural platforms like Wikipedia and the Internet Archive—is not an accident. In writing Section 230, Congress recognized that for free expression to thrive on the internet, it had to protect the services that power users’ speech. Section 230 does this by preventing most civil suits against online services that are based on what users say. The law also protects users who act like intermediaries when they, for example, forward an email, retweet another user or host a comment section on their blog.

The merits of immunity, both for internet users who rely on intermediaries—from ISPs to email providers to social media platforms, and for internet users who are intermediaries—are readily apparent when compared with the alternatives.

One alternative would be to provide no protection at all for intermediaries, leaving them liable for anything and everything anyone says using their service. This legal risk would essentially require every intermediary to review and legally assess every word, sound or image before it’s published—an impossibility at scale, and a death knell for real-time user-generated content.

Another option: giving protection to intermediaries only if they exercise a specified duty of care, such as where an intermediary would be liable if they fail to act reasonably in publishing a user’s post. But negligence and other objective standards are almost always insufficient to protect freedom of expression because they introduce significant uncertainty into the process and create real chilling effects for intermediaries. That is, intermediaries will choose not to publish anything remotely provocative—even if it’s clearly protected speech—for fear of having to defend themselves in court, even if they are likely to ultimately prevail. Many Section 230 critics bemoan the fact that it prevented courts from developing a common law duty of care for online intermediaries. But the criticism rarely acknowledges the experience of common law courts around the world, few of which adopted an objective standard, and many of which adopted immunity or something very close to it.

Congress’ purposeful choice of Section 230’s immunity is the best way to preserve the ability of millions of people in the U.S. to publish their thoughts, photos and jokes online, to blog and vlog, post, and send emails and messages.

Another alternative is a knowledge-based system in which an intermediary is liable only after being notified of the presence of harmful content and failing to remove it within a certain amount of time. This notice-and-takedown system invites tremendous abuse, as seen under the Digital Millennium Copyright Act’s approach: It’s too easy for someone to notify an intermediary that content is illegal or tortious simply to get something they dislike depublished. Rather than spending the time and money required to adequately review such claims, intermediaries would simply take the content down.

All these alternatives would lead to massive depublication in many, if not most, cases, not because the content deserves to be taken down, nor because the intermediaries want to do so, but because it’s not worth assessing the risk of liability or defending the user’s speech. No intermediary can be expected to champion someone else’s free speech at its own considerable expense.Nor is the United States the only government to eschew “upload filtering,” the requirement that someone must review content before publication. European Union rules avoid this also, recognizing how costly and burdensome it is. Free societies recognize that this kind of pre-publication review will lead risk-averse platforms to nix anything that anyone anywhere could deem controversial, leading us to the most vanilla, anodyne internet imaginable.

The advent of artificial intelligence doesn’t change this. Perhaps there’s a tool that can detect a specific word or image, but no AI can make legal determinations or be prompted to identify all defamation or harassment. Human expression is simply too contextual for AI to vet; even if a mechanism could flag things for human review, the scale is so massive that such human review would still be overwhelmingly burdensome.

Congress’ purposeful choice of Section 230’s immunity is the best way to preserve the ability of millions of people in the U.S. to publish their thoughts, photos and jokes online, to blog and vlog, post, and send emails and messages. Each of those acts requires numerous layers of online services, all of which face potential liability without immunity.

This law isn’t a shield for “big tech.” Its ultimate beneficiaries are all of us who want to post things online without having to code it ourselves, and so that we can read and watch content that others create. If Congress eliminated Section 230 immunity, for example, we would be asking email providers and messaging platforms to read and legally assess everything a user writes before agreeing to send it. 

For many critics of Section 230, the chilling effect is the point: They want a system that will discourage online services to publish protected speech that some find undesirable. They want platforms to publish less than what they would otherwise choose to publish, even when that speech is protected and nonactionable.

When Section 230 was passed in 1996, about 40 million people used the internet worldwide; by 2025, estimates ranged from five billion to north of six billion. In 1996, there were fewer than 300,000 websites; by last year, estimates ranged up to 1.3 billion. There is no workforce and no technology that can police the enormity of everything that everyone says.

Internet intermediaries—whether social media platforms, email providers or users themselves—are protected by Section 230 so that speech can flourish online.

David Greene

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総務省

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■開催趣旨:日本の軍事化へのアクセルを加速させている高市政権。スパイ防止法や国家情報局の設置などにも前のめりの姿勢を示していて、今年は法案の国会提出などが予想されます。日本を戦前へ引き戻し、民主主義と平和を脅かすような動きを、私たち市民は阻止していかなければなりません。JCJではこうした危機感から、今後スパイ防止法などの問題に関わっている方々の話を聞き、共に考えていくオンライン講演会を連続して開催します。第1回は、これまでも秘密保護法や共謀罪などに反対する活動を続けてきた関東..
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【フォトアングル】厚木基地のオスプレイに怒りの声あげる=1月4日、神奈川県大和市、伊東良平撮影

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