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Five lessons from the Ministry of Justice’s major debate on section 230

Section 230 of the Communications Decency Act is widely criticized, widely praised and widely understood. The policy makes it possible that almost every major website – from YouTube to Wikipedia – exists in its current form. Depending on who you ask, this is a wonderful development or a complete disaster. This has made section 230 a permanent feature of recent internet policy debates, particularly at the US Department of Justice, where there is a growing interest in changing the law.

The Ministry of Justice publicly kicked off that process today by bringing together three panels of experts to indicate reasons for amending or maintaining Section 230. Attorney General Bill Barr stressed that this was not a policy-making workshop, but the panels still gave a hint about which arguments the US government finds the most attractive. And while this may sound like a low bar, it was actually arguments about the law – not the weird fantasy rules that dominate similar debates in the congress and main current Press. That made it an unusually lively window into the way prosecutors and lawmakers think about the 230 and how to change it.

Here are the five points that stood out the most.

The biggest battlefields were harassment and child abuse

Section 230 has been invoked for much poor content – libel, shady arms sales, even defective collars. But today’s workshop workshop focused on three particularly ugly issues: non-consensual pornography, intimidation, and sexual abuse of children.

The panel members of the Ministry of Justice were lawyer Carrie Goldberg, who started a controversial fight with Grindr about a horrific intimidation campaign; Mary Anne Franks, professor at the University of Miami, who helped draft the first law on “revenge porn”; and Yiota Souras of the National Center for Missing and Exploited Children. All laid out – sometimes in graphic details – ways in which offending partners and sexual predators have armed the web.

Some of the more cherished and less dramatic cases were short-lived. Panelists only briefly mentioned a brewing fight about how Section 230 covers online marketplaces – though it has huge implications for sites such as Amazon and Airbnb.

The tight focus helped to establish an abstract legal debate in human terms. At one point Souras objected to a flagrant mention of “death by ten thousand duck bites” – a reference to websites that flooded with legal complaints under a weakened law. “We must be careful with this terminology,” she argued. “I know this entails business costs, but there is a person who has suffered damage online behind each of those” duck bites. “

But we have seen heartbreaking problems cynically working together to pass bad laws. The FOSTA-SESTA rule, which cut off section 230 protection for prostitution-related material, was announced as a fight against human trafficking while concealing the very real collateral damage among sex workers. Interestingly, the impact of FOSTA-SESTA was not extensively discussed at the panels – although Souras said that its passage is roughly correlated with a decrease in child abuse material.

The debate focused on “Big Tech”, garbage websites … and not much in between

In a brief opening speech, Attorney General Bill Barr called the Section 230 workshop a corollary of antitrust investigations at major technology companies. “Not all worries about online platforms are clearly covered by antitrust,” he explained – so changes to Section 230 can fill a number of regulatory gaps.

Panel members largely depicted that framework, focusing on how giants such as Google or Facebook failed in moderation. But they also periodically referred to the other side of the spectrum: small sites dedicated to harmful content such as “revenge porn.” These sites test the limits of section 230. In the best case scenario, they encourage abuse with a wink. In the worst case scenario, they actively participate in the abuse – Hunter Moore, who founded the infamous Is Anyone Up website, was convicted of hiring a hacker to take nude photos. As industry group Tech: NYC’s founder Julie Samuels noted in one panel, they fall outside the normal “Big Tech” debate: “just because you are small does not mean that you are automatically good.”

But apart from periodic complaints from Samuels and some others, critics have not really addressed the potential challenges for medium-sized sites such as Reddit or Craigslist – which do not have the financial resources or lobbying power of Facebook or Google. “Section 230 is not just for” Big Tech, “argued Patrick Carome, who has defended a long list of section 230 cases. If sites can only work with armies of moderators or advanced automation, that is functionally an advantage for the largest and richest companies.

Encryption can be on the chopping block, but nobody has admitted it

The Ministry of Justice has supported a bill for the time being the EARN IT Act, seen by many as a Trojan horse for bans on coding. Today’s workshop has not taken away that concern. Barr referred to how section 230 could harm “efforts to combat lawless spaces online,” and warned that platforms could use policies to block law enforcement. And Assistant Attorney General Beth Williams, who managed a panel, specifically asked how encryption could harm efforts to find sexual child abuse material. “There must just be a compromise on how encryption is rolled out,” Souras replied.

But the Ministry of Justice has been asking for concessions for years for encryption and it is still unclear what such a compromise might look like. In response to the same question, CCIA President Matt Schruers explained broadly the “balancing” of encryption with access to the police, but more as a general principle than as a legal doctrine.

The vagueness is not exactly surprising. The EARN IT law does not even mention coding, and even without the problem there is much disagreement about changing section 230.

Debating legal solutions can be a mess

Many major technical policy fights can be summarized as one big, clear question. Apply a net neutrality law. Repeal of rules for mass surveillance. Stop a bad bill for intellectual property.

But the debate about section 230 is more difficult to establish. Should anyone be able to sue a website for hosting illegal content? Should public prosecutors simply gain more power? Are only certain types of websites protected?

Neil Chilson, a fellow at the Charles Koch Institute, grouped reform proposals into two categories. One is a “carveout” approach that removes protection from certain categories of content – like FOSTA-SESTA did for sex-related material. The other is a “negotiating chip” system that links liability protection to compliance with certain standards – such as the EARN IT Act, which (as the name suggests) shows websites that fight against the sexual abuse of children.

These are vastly different visions for the Internet, even before you define what the categories and standards are. It is easy to articulate a flat opposition to change. But even some of the biggest proponents of Section 230, such as panel member and lawyer Jeff Kosseff, are open to adapting the language. The clearest rhetorical strategy could focus on what awful thing you want to scrub off the internet – but it worked.

The “political bias” fight resembles a meaningless publicity circus

A handful of conservative politicians have promoted the idea that Article 230 should (or already does) require that websites are politically “neutral platforms.” Last year, Senator Josh Hawley (R-MO) sponsored a proposal to give sites the approval of a government commission before they were given liability protection – effectively making technology policies a baton to punish companies with opposing political views.

Fortunately, the Ministry of Justice seems to have a different approach in mind. This proposal deserved a short, somewhat mocking aside during the almost four-hour workshop. Barr complained that the declining competition was damaging the “diversity of political discourse,” but he did not link that to Section 230 changes. Neither does panel moderators from the Ministry of Justice. Politically monitoring Facebook’s political slant may be a public theory for politicians and experts, but it was just not a serious topic of conversation. Nor was the popular misconception that Article 230 defines websites as “publishers” or “platforms” and controls them differently.

This created space to tackle more nuanced points. For example, Barr tried to explain why the Ministry of Justice cares so much about the reform of Section 230, despite the existing exemption for federal prosecutions. (“Federal prosecution is powerful, but necessarily, it is a limited tool that addresses only the most serious behavior,” and civil liability can “work hand in hand” to provide more redress to victims.) Several panel members asked for more evidence that Section 230 actually encouraged good moderation – or that, in Souras’s words, that goal is “a bit ambitious.”

You can reasonably disagree with these claims. But unlike many of the broad sides to section 230, it is arguments that can actually be disputed – not just refuted as nonsense.