Posted Jul 25, 2018
Why does Google, Youtube, Facebook, Twitter, etc. allow neonazi, fascists, conspiracy mongers, and Russian spy agencies to post on their sites?
In 1996, dotcom lawyers sprinkled cash on Congress to get the lawmakers to insert 47 U.S.C. §230(c)(1) in the Communications Decency Act.
If you can't find your copy of the US Code in your kitchen, I'll post it here:
47 U.S.C. §230(c)(1): "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."
That's it. That's the entire law in one line.
This means dotcoms are basically a telephone pole. If person nails a wild accusation to a telephone pole, the telephone company is not a publisher of the content: it is merely the distributor of the content, so it can't be sued. 47 U.S.C. §230(c)(1) is an immunity clause for Internet companies: the dotcom is not responsible and can't be sued.
If a dotcom starts to edit, review, or, worse yet, block the content, the dotcom is no longer a transmitter of content: it becomes the publisher of content and it loses the immunity of §230(c)(1). They could be liable for the content.
Here's an example. Mr. Acorn uses Gmail to send an email to hundreds of people which says Mr. Berry is a buckethead. Mr. Berry sues Mr. Acorn for libel AND sues Gmail for distributing the email. (If Mr. Acorn calls Mr. Berry a buckethead in a bar, that's a spoken insult, which is slander. If he writes it, then it's libel.)
Mr. Berry hires a lawyer, who files a lawsuit against Mr. Acorn and Google Gmail. The first step in court is to see if there is a law for this issue. Google Gmail send an intern who wears a T-shirt on which is printed good ol'47 U.S.C. §230(c)(1) and that one line of law. The intern stands up, the judge sees the T-shirt, and the judge promptly dismisses the case. It doesn't go to trial, jury, or even to lunch. Google Gmail is not liable for Mr. Acorn's emails. Mr. Berry can sue Mr. Acorn for libel but Google Gmail is not involved.
- The complete text of the Communications Decency Act is at the FCC: https://transition.fcc.gov/Reports/tcom1996.txt It's a long text. To find §230(c)(1), search for "SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING"
- Read Wikipedia's entry on Section 230. It includes many examples of lawsuits and court cases.
- Phil Kerpen, a conservative activist, posted a memo to suggest that the right wing could use Section 230 to regulate or control Internet companies such as Google and Facebook. The right wing is convinced that it is being blocked by web companies.
- A proposal from Congress also suggests that Section 230 can be used to control Google and Facebook by allowing liability, in other words, the ability to sue the companies. They're saying to Google/Facebook, "Nice shop window you have there. It'd be a shame if something happened to it."
- Lee writes, "Andreas, wrong. They are private companies that can set rules for terms of service and refuse the service to anyone who violates the rules. No shirt, no shoes, no service."
To which I reply, "This is law, so it's way more complicated than that."
- The law 47 U.S.C. §230(c)(1) is not a question of refusing service. Companies can refuse service (generally) but they don't need this law to do so. The point of Section 230 is to protect Internet company from liability for libel.
- What happens if Gmail sees Mr. Acorn's buckethead email and refuses to send it? This means Gmail is an editor (reviewer of content) so if Mr. Acorn sends a second email to Mr. Berry and calls him a mooncalf, Mr. Berry can now sue Gmail for distributing libel.
- This is why, for twenty-two years now, US dotcoms have refused to review or block content (which is also why porn is allowed on the web.)
- But... that dam is cracking. It started with al Qaeda and ISIS: They published lots of violent articles calling for jihad and videos of beheadings. The US government begged Youtube, Facebook, Twitter, etc. to block these videos, and for a while, they refused ("freedom of speech, blah, blah, blah" as if these companies actually cared about that). But finally, Silicon Valley began to block the jihad videos. Perhaps the US government asked just exactly who is going to defend these Silicon Valley corps from jihad rocket attacks (this isn't theory: Mark Zuckerberg and the other CEOs are protected 24/7 by squads of ex-Special Forces bodyguards). In 2016-2018, neo-nazi, racists, conspiracists, fascists, Russian espionage, and others began to use the web to attack democracy precisely because dotcoms wouldn't review or block content.
- Here's a big secret: The large dotcoms have indeed been reviewing and blocking content. Did you know Google has ten thousand reviewers? And they've been doing this for more than 15 years now? Bing does this too. Facebook has been ramping up; they're currently at ten thousand reviewers (summer 2018) to review and block postings and may go to twenty-to-thirty thousand reviewers. Which clearly contradicts 47 U.S.C. §230(c)(1).
- So someone may (and that's "may") bring a court action on this issue. What will happen? Interesting question. Many laws that have never been tested because both sides are not certain of the outcome. For example, there have been very few lawsuits over the 2nd Amendment ("right to arm bears") because anti-gun people are afraid the Supreme Court could vote in favor of bears. Or the pro-gun people are afraid the Supreme Court could vote against bears. So the top legal experts for both sides are careful not to bring this to court.
- The same with 47 U.S.C. §230(c)(1). If Cindy calls Bobby a buckethead, Bobby hires a federal lawyer ($700/hr) who will also charge him $50,000 up front just for the meeting and another hundred grand to file the lawsuit against Cindy and Google. Google's lawyers will intentionally drag this out as long as possible because every month that goes by, Bobby's lawyer will charge another $10,000 and Bobby may just give up (so Google's lawyers win by doing nothing). If Bobby refuses to give up, Google will settle out of court because Google doesn't want a trial where a federal judge might rule against Google. But this whole scenario is unlikely because Bobby's lawyer will look at Bobby's scuffed shoes and T-shirt and realize that Bobby doesn't have the $200-300,000 that it'll take just to drag Google into court.
- See? The US legal system is the most wonderful legal system in the world because everyone, rich or poor, can use the law... as long as they have $500,000.
- However, some people actually have that much cash laying around so this could become an issue. In the last few years, Ted Cruz, who is both the Republican Senator from Texas, a brilliant lawyer, and a total nut, along with several billionaire donors who own vast tracts of land and ultra-right politicians, have been threatening Google, Facebook, Youtube, etc. with a repeal/rewrite of 47 U.S.C. §230(c)(1) if those companies continue to blacklist, block, ban, or shadowban fringe conservatives.
- So Silicon Valley companies have a problem: they want to remove these ultra-right groups (nazi, fascists, etc.) for violation of user terms (no sexist, racist, hate speech, threats of violence, etc.) but they don't want a fight with the extreme right of Congress. In the current hyper-extremist political climate, nobody has any idea what would be in the new version of that law. Both sides have hundreds of billions of dollars and can spend a great deal to
buy politicians, er, make legal campaign donations.
- It's also possible that Cruz and his buddies really don't care about the politics and only see this as an opportunity to force Google/Facebook to
pay protection money, er, make generous campaign donations. Another possibility: Cruz, who was told by God Himself that Cruz should be president, can use this to run for president by allowing Google/Youtube/FB to get rid of his alt-right competitors without violating Section 230 ("You get rid of them for me and I'll be your friend in the White House"). Thus the far-right gets rid of the ultra-right. That's how Washington's Big Boys play hard ball.
As I wrote at the beginning, this line of legal code was written in 1996 by a bunch of lobbyists who got Congress to paste it into US law. Nobody in 1996 had the slightest idea what this would lead to in 2018. Fascinating, no?