Recap of the USDOJ’s Section 230 Roundtable

[Earlier today, the Senate Judiciary Committee held a hearing on the EARN IT Act, so I thought it would be a good time to catch up on this backlogged post on related topics.]

In February, I attended two events organized by the U.S. Department of Justice. In the morning was a public event called “Section 230–Nurturing Innovation or Fostering Unaccountability?” AG Barr kicked off the session with opening remarks. Read his remarks. The morning then had three panels: (1) “Litigating Section 230,” (2) “Addressing Illicit Activity Online,” and (3) “Imagining the Alternatives.” I spoke on the third panel. Watch the morning’s video.

In his opening remarks, AG Barr criticized Section 230 on the merits, with only a brief reference to encryption. Having the DOJ target Section 230 is troubling and noteworthy. You may recall the DOJ opposed the final version of FOSTA. Now, AG Barr said that the Internet has evolved since 1996 and asked if immunity is still needed. He claimed that Section 230 has stretched beyond the initial use cases envisioned for it because it protects defective product sellers and terrorists. He stressed the importance of civil enforcement to supplement federal criminal enforcement (a possible contravention to a decades-old core position of the Republican party). He claimed that broad Section 230 immunity has hindered civil enforcement by the DOJ and FBI (sadly, no citations for this proposition). He also claimed that Internet services purposely blind themselves (possibly an encryption reference) and Section 230 has reduced incentives to keep kids safe. This positioned the DOJ to get 100% behind the terrible EARN IT Act.

After a break, the morning panelists and a new group of speakers reconvened for an afternoon roundtable to discuss/debate questions specifically posed by DOJ staff. The roundtable was subject to the Chatham House rule. The afternoon session had two parts: (1) Content Moderation, Free Speech, and Conduct Beyond Speech; and (2) Addressing Illicit Activity and Incentivizing Good Samaritans Online. I didn’t speak at the roundtable, though I did raise my hand to get into the speaking queue several times.

Coverage of the event from Rebecca Tushnet: AG Barr’s remarks and Panel 1; Panel 2; Panel 3; and afternoon roundtable.

Coverage of the event from TechFreedom (on Techdirt): (1) Why Section 230 Matters And How Not To Break The Internet; DOJ 230 Workshop Review, Part I. Describing the event as a Festivus Airing of Grievances, and the roundtable participants as including a “Star Wars cantina freak show of right-wing astroturf activists who have made a cottage industry out of extending the Trumpist persecution complex to the digital realm” (🔥🔥🔥); (2) Section 230 and Criminal Law; DOJ 230 Workshop Review, Part II; and (3) Barr’s Motives, Encryption and Protecting Children; DOJ 230 Workshop Review, Part III.

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I’m sharing the remarks I prepared before my panel, but I deviated from these substantially in light of the conversation. Many of these points overlap with my submitted statement, which you can read here. That statement, in turn, formed the basis of a letter from academics to Congress that we released on Monday.

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This morning, we heard a lot about Section 230’s costs. They are real and deserve our attention. At the same time, we also need to consider Section 230’s benefits, which are also real and substantial. Any review of Section 230 requires a balancing of these interests.

Some of Section 230’s benefits we should not take for granted:

• Job creation. Section 230 creates an ecosystem that creates hundreds of thousands of jobs. Section 230 also provides the U.S. a global competitive advantage because no other country has replicated our statutory approach (to their detriment).
• Promote small businesses. Section 230 lowers market entry costs for new entrants into the industry.
• Improve marketplace efficiency. Section 230 helps create new marketplaces that don’t exist in the offline world. Section 230 also helps discipline markets to reward good producers and punish bad ones, especially through consumer reviews.
• Increased exposure for marginalized voices, which helps the formation of niche communities such as my wife’s ROS1 lung cancer community. There are only about 6,000 ROS1 patients in the US–too small a population to support face-to-face information exchanges or get much attention from traditional media sources. The active social media communities for ROS1 patients has demonstrably improved–and extended–their lives.
• Diverse editorial practices. Section 230 gives UGC services the freedom to use different editorial practices to address their unique audiences, which also enhances competition between those services.

A few additional observations:

• We’re not at the end of the Internet innovation cycle. The configuration of the Internet circa 2020 is almost certainly not going to resemble the configuration circa 2045 or even 2030. Section 230 promotes the inevitable socially beneficial technology evolutions still to come.
• Section 230 is the solution, not the problem. Critics blame Section 230 for allowing or encouraging online anti-social activity. But in fact services use Section 230’s immunity to do the socially beneficial work of curbing that bad behavior. Whatever anti-social behavior is taking place online, Section 230 is the fastest and most precise route to redressing the pathology (other than eliminating UGC entirely).
• We can never stop all anti-social behavior online. Anti-social interactions are part of the human condition. Instead, we should set the baseline as whether the Internet mirrors or does better than the offline world. Section 230 enables new tools that can actually upgrade human interactions compared to the offline baseline, such as Nextdoor’s kindness reminder.

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I’ll end this post with some error corrections:

• Annie McAdams claimed that she was part of the first team to defeat the CDA on a motion to dismiss. I believe she was referring to a Texas state court ruling from May 2019. Maybe she meant to add some qualifiers to her claim. The broadly-stated claim is off by about 2 decades.
• Carrie Goldberg claimed that the federal crimes exception has been used only one time in Section 230’s entire history. This is clearly wrong. I usually highlight three examples of how the DOJ has used the federal crimes exception: the 2007 search engines’ settlement regarding Internet gambling ads; Google’s 2011 settlement over illegal pharmaceutical ads; and Ross Ulbricht’s lifetime conviction for his role running the Silk Road. [Note: the 2007 and 2011 settlements were technically civil settlements, but the enforcement actions was tenable only because of the federal crimes exception.] Other examples include Backpage’s pre-FOSTA settlement; the MyRedbook conviction; the Rentboy conviction; and many others…. I also note that the FTC has brought civil anti-revenge porn enforcement actions despite Section 230.
• Prof. Mary Anne Franks claimed that without a new federal crime, revenge porn sites qualify for Section 230 immunity. In this 2018 article, my co-author and I documented a number of cases where revenge porn website operators faced liability despite Section 230–including the FTC enforcement actions I just mentioned and the California AG’s office prosecution in the Bollaert case.
• Nebraska AG Doug Peterson claimed that excluding state crimes from Section 230 wouldn’t piecemeal the immunity. That’s quite misleading. Such an amendment would newly unleash tens of thousands of diverse and heterogeneous state crimes onto Section 230-protected services; and it also would give new powers to dozens of state AGs, each with their own idiosyncratic and parochial motivations. If this isn’t piecemealing, then it’s worse than piecemealing. I explain more about the interplay between state crimes and Section 230 in my 2013 essay.
• Prof. Franks claimed that Section 230(c)(2) is what authorizes Internet services to affirmatively engage in content moderation. I don’t really know how to respond to this one except to note that several hundred Section 230(c)(1) cases that have held otherwise.
• Prof. Franks claimed that Section 230(c)(1) takes away Internet services’ incentives to spend money to act as good samaritans, so why would they spend that money? This argument is 100% consistent with basic economics theory. And yet, in the real world, we know that Internet services actually spend tens of millions of dollars a year on content moderation; and those expenditures are driven by multiple motivations, including: brand reputation; expectations of more curated environments from site users, advertisers, and other stakeholders; concerns about liability under Section 230’s federal crimes exception; and more.
• Prof Franks claimed that marginalized community are being driven offline. This is unquestionably true for some communities, and demonstrably false for others. The Internet has actually been a boon to many marginalized communities that form and persist only online, such as my wife’s ROS1 cancer community.
• In the afternoon roundtable, one participant claimed that Hassell v. Bird expanded Section 230 immunity. [Recall, due to the Chatham House rule, I can’t name the speaker]. The California Supreme Court opinion is inscrutable due to Justice Kruger’s swing-vote concurrence. Justice Kruger emphasized her key issue is whether non-parties can be bound to injunctions. Even if the court did resolve the case on Section 230 grounds, the Section 230 legal standards articulated by the court were pretty standard.
• An afternoon participant attempted to distinguish content “publication” from content “curation” and “amplification,” such that Section 230 could protect the former but not the latter. This is becoming a venerable argument among East Coast academics, but this distinction is nonsensical. “Curation” and “amplification” of content are exactly what all content publishers do because it’s inherent in the publication process.

Due to my non-stop head-shaking during the day, the next day I woke up with a sore neck.