Sen. Graham Cares More About Trolls Than Section 230 (Comments on Online Content Policy Modernization Act)

I’m blogging yet another terrible Section 230 reform proposal: S. 4534, the ‘‘Online Freedom and Viewpoint Diversity Act’’ (introduced by Sens. Wicker, Graham, and Blackburn), which has been rolled into S. 4632, the “Online Content Policy Modernization Act.” Despite the urgent existential crises engulfing our country, Sen. Graham has fast-tracked a markup on S. 4632 for tomorrow. South Carolina voters: how can you stand for this?

Sen. Graham’s  Series of Anti-Section 230 Moves in 2020

Sen. Graham has at least four iterative moves this year targeting Section 230:

• He introduced the EARN IT Act to eliminate Section 230 for CSAM-related claims. After a major redraft (shared shortly before a committee markup), the Senate Judiciary Committee unanimously approved it. Sen. Graham unsuccessfully tried to “hotline” the bill for unanimous consent by the Senate. Sen. Wyden (and, I’m told, other Senators) placed a hold on the bill.
• Initially, the EARN IT Act sought to prevent Internet services from providing E2E encryption. When it became clear that issue was slowing down the bill, Sen. Graham mostly jettisoned the encryption restrictions from the EARN IT Act into a standalone bill, S. 4051, the “Lawful Access to Encrypted Data Act.” That bill is purely for show. It lets Sen. Graham claim he still supports banning encryption, while he pushes forward on gutting Section 230.
• In addition to the EARN IT Act, this month Sen. Graham joined Sens. Wicker and Blackburn in introducing the Online Freedom and Viewpoint Diversity Act, a new anti-Section 230 bill discouraging content moderation of online trolls.
• Sen. Graham then combined the bill’s provisions with the “CASE Act,” a bill creating a copyright “small claims” court in the Copyright Office, producing a Frankenstein bill, S. 4632. The CASE Act and the Section 230 revisions have no conceptual relationship with each other (other than, as discussed below, both benefit trolls). This procedural move allowed Sen. Graham to reassert Senate Judiciary Committee jurisdiction over Section 230 evisceration (the Online Freedom and Viewpoint Diversity Act was referred to the Senate Commerce Committee). 200k+ Americans are dead from COVID19, with more dying every day, and Sen. Graham is playing turf war games. The Frankenstein bill also tries to engender support from Senate Democrats who support the CASE Act, hoping they will overlook the Section 230 stinger.

Why is Sen. Graham so motivated to gut Section 230? How do these efforts benefit his  constituents? What other urgent topics should his office prioritize instead?

Summary of the Anti-Section 230 Provisions

The Online Freedom and Viewpoint Diversity Act, and the anti-Section 230 part of S. 4632 (the substance is the same), would modify Section 230:

• Actions taken “to restrict access to or availability of material” would be protected exclusively by Section 230(c)(2), not Section 230(c)(1).
• With respect to Section 230(c)(2)(A):
  • a service provider’s decision to block content must be “objectively reasonable.”
  • currently, Section 230(c)(2)(A) protects decisions to block content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The bill would replace the “otherwise objectionable” catchall with “promoting self-harm, promoting terrorism, or unlawful.“
• It changes the definition of “information content provider” so Section 230(c)(1) doesn’t apply if the service “editorializes or affirmatively and substantively modifies the content of another person or entity,” unless the service merely changes “the format, layout, or basic appearance of the content.”

In other words, the bill would:

• make all content and account removals governed by the less protective provisions of Section 230(c)(2)(A), reducing the discretion that’s currently available in Section 230(c)(1).
• reduce the safe harbor for content and account removals so that (1) decisions must be “in good faith” (whatever that means), (2) as determined by an “objectively reasonable” standard  (not the current subjective standard), and (3) fit within a narrowed set of justifications for removals, most significantly replacing the “otherwise objectionable” justification with a much narrower “unlawful” justification. This introduces a gap where a service might have wanted to remove “lawful but awful” content but would lose Section 230 protection doing so.
• impose new legal exposure when a service “editorializes” (a term that has no legal definition and is absolutely meaningless) or “affirmatively and substantively modifies” third-party content.

Why This Bill Is Terrible

Like other Republican attacks on Section 230, the bill wants Internet services to act as “passive” receptacles for users’ content rather than content curators or screeners of “lawful but awful” third-party content. These efforts are stupid because we need less garbage content on the Internet, not more. Section 230 lets Internet services figure out the best ways to combat garbage content, and many services have innovated and invested more in improving their content moderation functions over the past few years. Why would Sen. Graham want to suppress those efforts?

Increased Liability for Removing Troll Content? Simply put, this bill is pro-troll. It discourages Internet services from removing “lawful but awful” content. Right now, Internet services qualify for Section 230(c)(2)(A) if they remove content that they subjectively believe is “objectionable.” (Note: services actually rely on Section 230(c)(1), which is even more deferential to services’ editorial discretion). The revised Section 230(c)(2)(A) would provide the safe harbor only if the service has an “objectively reasonable” belief that such content is “unlawful.”

So what’s in that delta? What content is protected by Section 230(c)(2)(A) today wouldn’t be protected if the bill passed? Some examples:

• dehumanizing content, like “all Jews are cockroaches” or expressing misogyny. Section 230(c)(2)(A) protects removing “harassing” content, but that doesn’t apply to attacks directed at groups, not individuals
• doxxing, like deadnaming trans people
• schoolyard name-calling and similar incivilities
• junk science/conspiracy theories, like anti-vax content or quack COVID19 cures. The new bill protects removals of “self-harm” content, but not content that encourages others to harm themselves

None of this content is unlawful; indeed, the First Amendment applies to all of it. Yet, we want Internet services to actively fight garbage like this. Instead, the bill would make garbage content  functionally untouchable.

Note that the bill doesn’t ensure liability for removing “lawful for awful” content. It just removes Section 230’s protections against lawsuits over such removals. Those lawsuits should eventually fail due to the TOS provisions, the First Amendment, or other legal limits. Indeed, toughened TOS language should prevent lawsuits from users whose content/account is removed. Nevertheless, we already see lots of lawsuits over content/account removals, despite their obvious futility per Section 230(c)(1). Remove the Section 230 fast-lane for disposing of such cases, and every removal decision becomes a vexing calculus about whether Section 230(c)(2)(A) would apply and how much it would cost to defend the inevitable lawsuits.

Further, actual lawsuits would cost much more because Section 230(c)(2)(A) defenses could not succeed on a motion to dismiss. Plaintiffs usually will be entitled to engage in expensive discovery on whether the service had an “objectively reasonable” basis for the removal. Internet services already avoid relying on Section 230(c)(2)(A) because it costs too much to litigate the “good faith” requirement. The bill would explode these defense costs, and that would cause services to leave up more garbage content to minimize costs.

What is “Editorializing”? The bill could be read to say that a single incident of editorializing by a service permanently forecloses its Section 230 protection forevermore. I assume (?) that’s not what the drafters meant.

OK, so when does a service “editorialize” third-party content? The bill surely targets Twitter’s fact-check of Trump’s tweeted lies. However, unless a single fact-check cuts off Section 230 permanently, Twitter doesn’t really need Section 230 protection for Trump’s tweets because they aren’t likely to expose Twitter to any liability. Twitter would almost certainly be legally protected by the First Amendment and other legal doctrines for Trump’s content, even without Section 230. So this bill counterproductively isn’t likely to discourage Twitter from fact-checking Trump.

Furthermore, discouraging fact-checking is stupid. We need Internet services to do more to combat lies and misinformation. See, e.g., Facebook’s efforts to identify and label state-sponsored media, or the various interstitial warnings that social media services interpose for adult or graphic content. If they are willing to do that work, we should praise them, not punish them.

“Editorializing” could mean much more than fact-checking. Would it apply every time an Internet service provides any subjective characterization of third-party content? e.g., highlighting “most downloaded” or “hot” items. If so, the bill would reduce navigational aids or other metadata that improves users’ experiences.

Whatever “editorializing” means, it creates a new litigatable element of the Section 230 defense. If a defendant claims Section 230(c)(1), the plaintiff will respond that the service “editorialized.” This also increases defense costs, even if the defense still wins.

What Does It Mean to “Affirmatively and Substantively Modify” Content? The bill attempts to draw a line between “substantive” modifications of third-party content and modifications that affect “format, layout, or basic appearance.” Services can slice-and-dice content many ways, so these two categories are not the complete Venn diagram. Judges inevitably will make tortured epistemological analogies trying to fit a case’s facts into these incomplete boxes. Again, even if the defense prevails, the additional litigatable element boosts defense costs.

Constitutional Problems? Section 230(c)(2)(A) privileges certain content classes over others. Those classifications have been inconsequential because (1) defendants usually rely on Section 230(c)(1) over Section 230(c)(2), and (2) the “otherwise objectionable” catchall essentially covered any non-enumerated content categories. The bill would change both of these considerations, and as a result, I believe that increases the risk that the bill’s changes are unconstitutional content-based speech restrictions. In particular, the revised Section 230(c)(2)(A) would condition a government-provided privilege on the removal of only certain types of content and not others, and it’s arbitrary which content is privileged. (For more, see this). This raises the possibility of strict scrutiny for the amendments.

A Few Comments About the CASE Act

The Online Content Policy Modernization Act piggybacks on the CASE Act, which the Senate Judiciary Committee approved in September 2019. (It hasn’t proceeded to a Senate floor vote because Sen. Wyden has a hold on it). The CASE Act addresses the concern is that it’s too costly and complicated for independent copyright owners to enforce against small-scale infringers in federal court. These costs are necessary to provide industrial-grade adjudication processes that ensure due process and reach well-reasoned results.

To lower barriers to court access, the CASE Act would create a kangaroo court in the Copyright Office for “low-stakes” copyright infringement cases. To reduce adjudication costs, the proposal would sacrifice the adjudication process integrity and due process. Defendants would have the burden to promptly “opt-out” of the kangaroo court. Assuming they get proper notice, anyone who understands the kangaroo court would immediately opt-out because CASE Act tips the scales too much towards copyright plaintiffs. Only clueless defendants would remain in the kangaroo court.

Our federal courts are already clogged with many unmeritorious low-scale copyright lawsuits, many of which fail on a motion to dismiss. These junk lawsuits, and many new ones, would migrate to the Copyright Office kangaroo court, where they will have a greater chance of success. Defendants may not get proper notification of the suit, know how to defend their interests, or be willing to spend money on legal defense; and this makes the kangaroo court an excellent trolling venue for quick settlements. Is this really Congress’ top priority today?

Conclusions

In August, I wrote about the urgent structural problems in our country and why I am baffled that Congress is prioritizing Section 230 reform instead. Hundreds of Americans are dying each day due to COVID 19, yet Sen. Graham is investing his office’s resources to help trolls. WTF?

Sen. Graham’s baffling moves show why Americans HATE Congress–because some members care more about scoring political points than doing the hard work necessary to make America great. We are better than this, Sen. Graham. Do your job, or better yet, find a new one. South Carolina voters, you can help make that choice for him.