Section 230: boon or threat to the public

Final Project for University of Washington Com 588 U.S. Digital Media Law and Policy  Ross Reynolds  June 12, 2009

Subject:
Does the federal law that protects Internet service providers, bloggers and chat rooms from liability for items posted by third parties serve the public interest? If not, how could these rules be modified to better protect the public interest? Would such modifications serve the public interest?

Introduction:

In 1994 at the dawn of the Internet era a popular computer service called Prodigy had a “Money Talk” bulletin board.  An unknown user posted statements suggesting that a securities brokerage firm, Stratton Oakmont, Inc., committed criminal and fraudulent acts in connection with an initial public offering. Stratton sued Prodigy and the anonymous poster in New York state court for defamation. They maintained that Prodigy was the publisher of the remarks because they presented themselves as exercising editorial control over the content on their servers and employed a Board Leader to moderate discussions. The court agreed and Prodigy was held liable.

The case presented a quandary for the new communications sector. Its strength was allowing anyone with a computer to publish to the entire computer-linked world.  But if the venues for this user-generated content were liable for everything published there would be powerful incentives to tamp down the open discussion. Section 230 was explicitly written into the Telecommunications Act of 1996 to overturn the Stratton Oakmont v Prodigy case.

Section 230 lays out the aspirations for the new medium. Congress called the Internet “an extraordinary advance in the availability of educational and informational resources to our citizens” offering “a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity”.  Congress said it is United States policy to “promote the continued development of the Internet and other interactive computer services and other interactive media” and “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation… to the benefit of all Americans”.

In the 13 years since, the regulations have nurtured the Internet to the benefit of most, but not all, Americans.  Some Americans feel they have been harmed been harmed by the way Congress acted: the mother of an 11 year old boy who was lured into sexual activity with two other boys by a man who later offered for sale photos and videotapes online; members of college athletic teams who learned they had been secretly videotaped in the locker room and those video tapes were sold over the Internet through; a man defamed by an anonymous AOL subscriber who said the man was selling a tasteless t-shirt about the Oklahoma City federal building bombing;  a Portland, Oregon woman who charged that  her ex-boyfriend posted nude photos taken of her without her knowledge or consent on Yahoo. In each case the perpetrator was liable, but the Internet service that conveyed the information was held harmless. This is because Section 230 treats the Internet differently than other communications media.

Section 230
Common law and American courts have found that with a few exceptions repeating defamation makes you as guilty as the original defamer – “tale bearers are as bad as tale makers”.  If you slander or libel someone, you are liable. If you publish the defamation, you are also responsible.  Broadcast and print media outlets that pass on defamatory material created by others, i.e. a listener call on a radio program, a paid ad or a letter to the editor, are as liable as the creators of the material.  (Hyland)

However, the law has held distributors of defamatory information are not legally liable. The phone company is not responsible for defamatory remarks made in a phone call. The postal service is not liable for defamatory material sent through the mail. Section 230 of the Telecommunications Act of 1996 upends that formula on the Internet. (Hyland)

It says “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”.  The act goes on to define information content provider as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service”.  The courts have interpreted this to cover any Internet service that includes user-generated content – bloggers, social networks, bulletin boards, comment sections, chat rooms.  Effectively this means that service providers, social networks, on-line stores are held harmless for any defamatory content generated by 3rd parties on their web sites.  On the Internet the tale bearer is not as bad as the tale maker.

The results have been dramatic. User-generated content is a key element of what makes the Internet unique and useful.  Instead of requiring access to a radio or TV station or a printing press, the Internet allows bloggers, user reviews on Amazon.com and Yelp, comment boards, and social networks like Facebook and MySpace creating millions of forums for spirited discussion and criticism. It has allowed everyone on the Internet access to the views of everyone else, virtually unfettered and unfiltered.  As anyone who has perused the comments section on a newspaper web site sees, this has brought out copious amounts of uninformed, bigoted, and flat wrong nonsense. But even that has value.  Former Washington Post editor Doug Feaver recently wrote in defense of “anonymous, unmoderated, often appallingly inaccurate, sometimes profane, frequently off point and occasionally racist reader comments”. Feaver wrote -  “I believe that it is useful to be reminded bluntly that the dark forces are out there and that it is too easy to forget that truth by imposing rules that obscure it. As Oscar Wilde wrote in a different context, “Man is least in himself when he talks in his own person. Give him a mask, and he will tell you the truth.””
But what happens if what the man behind the mask says is not only false, it defames someone else, subjecting that person to public humiliation, injuring their reputation and endangering their livelihood? What if the man behind the mask uses his free speech to victimize children.

Does Section 230 Allow Defamation?

The first case brought using the Section 230 defense following passage of the Telecommunications Act of 1996 was Zeran v America Online. Ken Zeran said he was defamed by an anonymous American Online (AOL) subscriber who put up a fake ads for t-shirts glorifying the bombing of the Alfred P. Murrah Federal Building with slogans like “Visit Oklahoma…It’s a BLAST!!!”, “Putting the kids to bed…Oklahoma 1995″, and “McVeigh for President 1996″. Zeran’s home phone number was in the post. He was barraged by threatening phone calls and unable to use his phone for work. Zeran was so unsafe the FBI put him in protective custody.

AOL took down the ads. New ads appeared and they were taken down. The account of the anonymous AOL user was cancelled. Zeran sued AOL for defamation. AOL cited Section 230 in its defense and won. There is little doubt that the material posted on AOL materially harmed Zeran. But Section 230’s provision holding the AOL harmless as distributor of the defamatory material was a perfect defense.

In 2000 a John Doe and other members of the football team at Illinois State University, wrestlers at Northwestern University, and varsity athletes from several other universities sued Franco productions and GTE over videotapes of the athletes secretly recorded in locker rooms with titles like “Voyeur Time” and “Between the Lockers” that Franco sold through advertising on GTE hosted web sites including “youngstuds.com”.  GTE successfully evoked Section 230 to get the case dismissed. One of the dissenting judges wrote that the court had misconstrued Section 230, particularly the section titled ‘Protection for “Good Samaritan” blocking and screening of offensive material’.  He said such a title was highly inappropriate if it ended up discouraging Internet service providers from doing anything about the distribution of indecent and offensive materials.

In 2005 an Oregon woman, Cecelia Barnes, sued Yahoo because her ex-boyfriend posted her nude photos without her consent and posed as her in a Yahoo chatroom soliciting sex. Barnes said she notified Yahoo and an official promised to immediately remove the photos. Nevertheless the profile stayed up for months.  Barnes was barraged by unwelcome email, phone calls, and visits to her workplace by men looking for sex.

The May 2009 9th U.S. Circuit Court of Appeals ruling said the case ” stems from a dangerous, cruel and highly indecent use of the Internet for the apparent purpose of revenge”.  Nevertheless the court ruled that Yahoo was protected from liability for materials published or posted on their sites by outside parties by Section 230.  The court said it didn’t matter if Yahoo was negligent for failing to immediately remove the material.  The court likened Yahoo to a phone company that would not be liable for private conversations used to plan crimes. But phone conversations are one to one, while a Yahoo profile or chat room presence is open to a huge potential audience.  Barnes’ attorney said Internet service providers are getting a “blanket immunity” that “doesn’t make sense.” (McCall)

Hyland suggests that Section 230 tips the balance between reputational rights and the free flow of information too far in favor of web services. She argues that it provides a safe haven for defamation that harms the utility of the web. Her solution would be to make web operators liable for defamatory material they distribute under the actual malice standard. If the plaintiff could prove the web operator left up a defamatory statement long after it was known to be false, the case could proceed. But there would be two additional hoops the plaintiff would have to clear to prove actual malice.

First, did the web service allow the person who was allegedly defamed respond to the comments and did that person respond. Was there a dialogue between the plaintiff and the web service? This is in keeping with First Amendment free speech standards that favor a marketplace of ideas where more speech is preferred to squelching speech.  Secondly, if issues of social and political importance were discussed it would be a defense against actual malice. This defense might be applicable in a case where the defamatory material involved a public official’s conduct doing the public’s business.
Hyland’s suggestion that the utility of the web is endangered by Internet defamation is not backed by evidence. In fact by virtually every measure, Internet utility continues to rise as new services draw in more people.

Nevertheless cases like Ken Zeran and Cecelia Barnes lay bare the harm caused by the free wheeling nature of user-generated content on the web. It’s fine to say we should see the unfiltered cesspool of public opinion in order to better know the make-up of our citizenry, but once the malevolence is directed against an innocent person, the Internet amplifies the impact to cruelty and causes material harm. It’s hard to imagine Zeran or Barnes taking much comfort in knowing that Section 230 also allows them access to public reviews of that blender they were thinking about buying on Amazon.
But broadly speaking those benefits accrue to the vast majority of users compared to the numbers who are harmed by Internet defamation. Opening the door for actual malice complaints would place a massive burden on ISP’s, social networks and bloggers. Those who would shut down speech not because it was defamatory, but because it was critical, would have the leverage to tie the Internet up in knots with the result that user generated comment would be squelched. The issues become more complex when we look at the potential harm to children.

Is Section 230 Potentially Harmful to Children?

Section 230 says Internet service providers, bloggers and social networks or users are not held harmless in cases when there has been a violation of any Federal criminal statute relating to obscenity or the sexual exploitation of children.  But in cases involving alleged violation of state laws for the protection of children, Section 230 has shielded social networks.

In the Doe v MySpace case a female minor registered with MySpace contacted a 19 year old boy. They met and he sexually assaulted her. The girl and her mother sued MySpace and parent company News Corp. for negligence, fraud and negligent misrepresentation.  They charged that MySpace did not do enough to protect minors. The federal court in Texas dismissed the case, finding that it was not really a case about negligence; it was actually about content published on MySpace. Under Section 230, the host of the content is held harmless.  (Dardia)

John Palfrey, Professor of Law and Vice Dean, Library and Information Resources at Harvard Law School has written that it’s plausible for the law to hold a web site harmless for defamatory statements posted by 3rd parties. But he writes that Section 230 should not prevent parents from bringing a claim of negligence against social networking sites. He writes “there is no reason why a social network should be protected from liability related to the safety of young people simply because its business operates online.”
Palfrey contends that most social networks do a good job in protecting young people from harm and would not be liable. But allowing the possibility they could be liable would spur them to continue their innovation to protect kids. He says that parents whose children have been harmed should be able to argue that social networks have been negligent.
“If a given social network, situated as the defendant in a similar case, were taking no steps to protect kids, or, worse, doing things affirmatively to encourage dangerous behavior, they would be found liable—on a sliding scale—for harm done to the child.”
Adam Thierer, Senior Fellow at The Progress & Freedom Foundation argues for the current system of social norms and self-regulation.
“The tricky part of it comes down to the unwritten test or standard regarding exactly how much affirmative policing of user behavior we should expect sites to do before they would be free from negligence claims… I don’t want to see that become a bright-line legal test; indeed, I have trouble imagining what that test would look like.”
Thierer also suggests that tougher legal line on negligence might drive companies offshore where they would not be subject to social norms like industry best practices.
As comforting as it might be to assume that a law can be drawn to protect children, Internet companies themselves have a strong incentive to be watchful. In the 2006 film ‘Little Children’ a man who has served a prison sentence for indecent exposure to a minor, has moved back into the neighborhood to live with his mother. On a hot summer’s day he goes to a neighborhood swimming pool filled with children. At one point, one of the mothers recognizes him. The children are immediately pulled out of the pool, the man stand alone until police come and walk him away.
That level of revulsion would apply to any web site where children were victimized. The Disney Company runs a social web site for children ages 7 to 14 called Penguin Island. Kids take on penguin identities to play games and solve puzzled with other kids and their parents. Eight million kids participate. The President of Penguin Island claims they have never allowed any harm to come to children because of their negligence on their site. The loss of reputation and revenue they would suffer from allowing exploitation of children is so swift and devastating to their businesses is a huge incentive to be careful. It’s not the law that keeps them vigilant. It’s the their bottom line.
Furthermore it is the parent’s responsibility to monitor the home computer use of their children. If a child has access to a computer in the home, parents should know how that computer is being used. There are ample methods to monitor web sites visited and even what communication is sent. If parents cannot figure out the methods to monitor their children’s web use, they can always lock down the computer entirely or only allow use when they can watch over the children’s shoulder. A child’s misuse of the home computer is because of parental negligence.
Conclusion
In retrospect the drafters of Section 230 should not have claimed a free market for the Internet is to the benefit of “all Americans”. They did not foresee the harm caused by nefarious people who use the tool of the Internet to besmirch ex-girlfriends and victimize minors. So do we just shrug our shoulders and say there will be a few victims, such in the price of free speech? As a matter of law, I would say yes. Allowing liability for actual malice or allowing exceptions in Section 230 for cases involving children will protect a few but silence too many. Social network and Internet Service providers will, under the shield of protecting people from defamation or children from exploitation, shut down free speech rather than risk legal retribution. They’ll have the perfect defense in the court of public opinion by saying what can we do, the law tells us to place potential harm above free speech.
Meanwhile the hurly burly of the blogosphere, populated by people with much shallower pockets than the major corporations who run the ISPs and social networking sites, would be even more vulnerable. The price of allowing an offending comment would be their demise, not just an expensive lawsuit. But there are many other levers of power to prevent Internet service providers, social networks and bloggers from ignoring potential harm.
The Internet allows instant organization of protest, as we saw when Facebook recently tried to change terms of service and users revolted. In 2007 a blogger who goes by the handle Rudd-O posted a series of letters and numbers that could be used break the encryption of a new high definition DVD format. The blog post shot to top ranking of the social bookmarking site Digg.com, a web site that tallies the popularity of blog posts. The trade secrets revealed by breaking encryption are one exception to Section 230 protections. It’s against the law to have such third party material on your blog or web site. Attorneys for the movie industry sent a cease and desist letter to DIGG to take down the offending post.
DIGG had not hacked the code. DIGG had not written the post. It merely ranked the posting using automated algorithms. Initially DIGG took down the post and was showered with complaints from users for capitulating to the movie industry. But the cease and desist order proved ineffective.  By the end of the day the code was posted on 3,172 other blogs. One “keithburgun” posted an acoustic guitar version of the twenty-hexadecimal-digit encryption code in a You-Tube video.  The next day DIGG put Rudd-0’s post with the code back up. (Li)
The message was the legal route has limited effectiveness. A blogger who consistently allowed harmful comments would lose the one thing they count on- the trust of the readers. The corporation that would allow widespread defamation would lose the confidence of users, who would move on to a safer locale.  At the end of the day reputation, and threat of losing it, is the strongest incentive for Internet entities to carefully police 3rd party comments.
We should be clear that Section 230 in no way prevents people who have been defamed from going after the defamer. Are Internet entities as guilty because they are ‘tale bearers’? Although there are clear differences between telephone companies and Internet service providers, they are more alike than different in that their core function is not producing material but to conveying material.
Finally, should the harm caused by trolls on the web outweigh the benefits Hyland is right, the utility of the web will diminish and people will abandon it. The communication medium has a perfect self-correcting mechanism. Your computer has an ‘off’ switch.

Works Cited

Dardia, J. (2007). Doe v. MySpace. Retrieved May 9, 2009, from Citizen Media Law Project: http://www.citmedialaw.org/threats/doe-v-myspace#description

Feaver, D. (2009, April 9). Listening to Dot-Commentators. The Washington Post .

Hyland, A. (2008, Fall). The Taming of the Internet A New Approach to Third Party Internet Defamation. Hastings Communications & Entertainment Law Journal , pp. 79-126.

Li, C. B. (2008). Groundswell. Harvard University Press.

McCall, W. (2009, May 11). Yahoo wins round in Oregon nude photo case. Seattle Post-Intelligencer .

Palfrey, J. (2008) Born Digital: Understanding The First Generation of Digital Natives, Basic Books.

Palfrey, J.  (2009, March 5). Dialogue: the future of online obscenity and social networks. Retrieved from Ars Technica: http://arstechnica.com/tech-policy/news/2009/03/a-friendly-exchange-about-the-future-of-online-liability.ars

Sampson, M. (n.d.). John Doe v Franco Production et al. Retrieved May 17, 2009, from Internet Library of Law and Court Decisions: http://www.internetlibrary.com/cases/lib_case253.cfm