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Comment by austin-cheney | Hacker News Reader

Section 230 needs to be gutted such that it separates transmission from content publication. The intention of section 230 is to isolate delivery mechanisms, for example ISPs and cell towers, such that they cannot become victims of torts for the content carried upon them, which remains necessary. Will separating transmission and content with regards to section 230 harm social media? Absolutely. I am not a huge fan of walled gardens or the preposterous legal shield provided to online content providers versus any other publisher. Commercial entities that proffer from walled gardens exist to subject their users as the product as opposed to proffering from their users' commercial desires.

But but but then social media would have to be moderated... It is already aggressively moderated, such as YouTube taking down terrorism violence videos or removing anti-vaccine content. So, that argument has largely evaporated already.

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> The intention of section 230 is to isolate delivery mechanisms

No, it wasn't, it was to enable forum hosts to moderate content without incurring general liability for all content in the forum by so doing. The motivating cases were about ascribing liability to forum hosts differently based on moderation as a trigger for publisher-style (no need to prove knowledge) liability, with unmoderated forum hosts getting only distributor-style (specific knowledge required) liability. It wasn't about ISPs qua ISPs (the CompuServe and Prodigy cases involved entities which were incidentally ISPs, but involved them in their role as forum hosts, not ISPs) or transmission at all.

> But but but then social media would have to be moderated.

No, if it was outside of Section 230, the opposite would be the case. Section 230 is what make it economically possible for it to be moderated instead of unmoderated given the threat of general tort liability attaching as soon as any moderation is done. Without Section 230, social media, if it was viable at all, would only be viable unmoderated.

> No, it wasn't, it was to enable forum hosts to moderate content

That is incomplete. The actual reason was to isolate liability of ISPs that host online forums which receives user submissions and moderates those user submissions such that publication of content on those forums cannot be cause to sue the hosting ISP. The motivation had nothing to do with protecting forum moderators themselves even if that is the result of the law.

> No, if it was outside of Section 230, the opposite would be the case.

There is no reason to believe that outside of vague speculation, at least in the case of modern social media, because this issue remains untested against modern social media. When looking at other venues of publication moderation does occur economically without protection from section 230 or anything equivalent.

> > No, it wasn't, it was to enable forum hosts to moderate content

> That is incomplete.

Well, yes, you cut it in the middle of a sentence, so you have made it incomplete, but your explanation remains wrong.

> The actual reason was to isolate liability of ISPs that host online forums which receives user submissions and moderates those user submissions such that publication of content on those forums cannot be cause to sue the hosting ISP.

No, it wasn't. It had nothing to do with ISPs qua ISPs at all. It has to do with forum operators and their users being immune from being sued based on moderate actions. This is explicit not only in the findings and policy sections, and the legislative debates, but also in the operative text of Section 230.

Its not a common carrier rule for ISPs; you seem to be confusing Section 230 with net neutrality.

> The motivation had nothing to do with protecting forum moderators themselves

Yes, it was entirely about that (and about encouraging them to censor content in ways in which thr government would not be free to, which is why it was packaged as part of the most extensive and intrusive internet censorship law ever passed by Congress, and is—because it is a liability shield for private censorship and not government censorship like the rest of the Communications Decency Act—the only significant part of that law not struck down for violating the First Amendment.

> There is no reason to believe that outside of vague speculation

No, there is the actual business environment at the time the CDA was being debated, where the inpact of the notivating decisions were working through the industry. There are very clear reasons to believe that, those reasons were the actual arguments made in Congress for Section 230, and they are the reason Section 230 exists.

Your narrative is consistent neither with the text of the law, nor with the legislative history, nor with the broader legal and business history surrounding the adoption of Section 230.

It seems to be a narratige constructed around presenting what a lot of people have argued that they would like to replace Section 230 with as if it were the original motivation for the bill, which is simply historically unsupportable.

> When looking at other venues of publication moderation does occur economically without protection from section 230

Other venues of publication have scale controlled by things like manufacturing and distribution costs, so the marginal costs of comprehensive review once you are doing any moderation is a small share of total costs. Internet fora have extremely low distribution and manufacturing costs per unit of content, so the marginal cost of comprehensive review over limited moderation is enormous.

The assumption of (and thus imposition of the burden of) comprehensive knowledge of and liability for contents when an entity takes any moderation steps that is reasonable with, e.g., print publication simply is not with interactive comluter services.

> Your narrative is consistent neither with the text of the law, nor with the legislative history, nor with the broader legal and business history surrounding the adoption of Section 230.

The law only mentions content provider. What is that? The law doesn't say. Its broad. Its so vague that it could comprise the ISP, the ethernet cable plugged into your computer, the website, a moderating person, the drafter of a moderating policy, and just about anything else touched by an electron. As such its impossible to be wrong in interpretation because all interpretations are allowed as the law is written, which is precisely why everybody online is granted blanket immunity. That is the greatest example of tort reform as all torts are expressly eliminated to/from all parties. That is absolutely not the intent.

> The law only mentions content provider

No, actually, the law mentions "interactive computer service" as the protected entity. And it defines the term. Yes, that definition explicitly includes ISPs, since there were rising demands that they offer content filtering which would, under the existing precedent, incur publisher liability, but it also extends beyond it, and the motivating cases were not about ISPs qua ISPs.

It refers to information content providers, but those are the people who are liable, and whose existence distinct from the interactive computer service makes the interactive computer service not liable. It also rather specifically defines that term, as well. See, generally, 47 USC Sec. 230(f)

> As such its impossible to be wrong in interpretation

No, its not.

> because all interpretations are allowed as the law is written

Well, if you ignore the actual text of the law as badly as you are, I can see where you would get that idea.

> which is precisely why everybody online is granted blanket immunity.

No, everyone online is not granted blanket immunity; people online have successfully been sued for various torts.

> That is the greatest example of tort reform as all torts are expressly eliminated to/from all parties.

That's...not how Section 230 works, in practice, nor is it even consistent with the rest of your argument (which is that it was implicitly through vagueness, not explicitly), which, as already stated, is also wrong.

That is also not correct about interactive computer service. It is the provider or user thereof that is the protected entity. There is no ambiguity on that one. The law is only one small sentence. But in all fairness interactive computer service is pretty vague too.

> That is also not correct about interactive computer service. It is the provider or user thereof that is the protected entity

Yes, that was a bit of simplification, but you are strictly correct.

> The law is only one small sentence.

One? I think you may want to count again. Here is the text of Section 230:

(a) FINDINGS The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

(b)POLICY It is the policy of the United States—

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2) 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;

(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and

(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

(c)PROTECTION FOR “GOOD SAMARITAN” BLOCKING AND SCREENING OF OFFENSIVE MATERIAL

(1) TREATMENT OF PUBLISHER OR SPEAKER 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.

(2) CIVIL LIABILITY No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

(d) OBLIGATIONS OF INTERACTIVE COMPUTER SERVICE A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

(e) EFFECT ON OTHER LAWS

(1) NO EFFECT ON CRIMINAL LAW Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.

(2) NO EFFECT ON INTELLECTUAL PROPERTY LAW Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

(3) STATE LAW Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

(4) NO EFFECT ON COMMUNICATIONS PRIVACY LAW Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.

(5) NO EFFECT ON SEX TRAFFICKING LAWNothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—

(A) any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;

(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18; or

(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.

(f) DEFINITIONS As used in this section:

(1) INTERNET The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.

(2) INTERACTIVE COMPUTER SERVICE The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3) INFORMATION CONTENT PROVIDER The term “information content provider” means 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.

(4) ACCESS SOFTWARE PROVIDERThe term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:

(A) filter, screen, allow, or disallow content;

(B) pick, choose, analyze, or digest content; or

> The intention of section 230 is to isolate delivery mechanisms, for example ISPs and cell tower

Not quite true. The inciting cases was about ISPs hosting forums, and whether the forum host can be held liable for content it's users post.

https://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.

https://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Prod....

The text of Section 230 is so simple. It deliberately targets broader "interactive computer services".

> 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_

In both of those cases the forum operator and ISP were one and the same. The cause for concern then is that the ISP regulated user submitted content and thus was found liable for content published because the inference is that the ISP implicitly blessed such content by not removing it in the course of their moderation. This is not a risk to ISPs today or content transmission generally. The web, as it exists today in common practice, is no different than an offline magazine publishing user submitted content because editorial discretion is applied and the magazine is well isolated from the transmission mechanism, such as postal delivery.

Says the person leaving a comment on a forum which would likely not exist due to legal risks without Section 230 protection. :-)

I agree transmission should receive extra protection. But there is no case where moderating every piece of content that flies across the internet is economical nor even feasible given the volume and how insanely difficult it is to create repeatable one-size fits all rules. However, given the amount of public discourse that exists online now, we would only see a chilling effect from changing these rules. It gets even harder when you think about something like Mastodon.

Is the current state of the world ideal? By no means. It wasn't ideal before either when media and public discourse was controlled and channeled by only a few entities. And we should expect to see evolutions in the future as well - we haven't found the happy place yet.

At the very least, it seems reasonable if large public platforms were required to be more transparent about their moderation efforts and rules so at least we can see what is behind the curtain. The lack thereof has created a lot of distrust.

> would likely not exist due to legal risks without Section 230 protection. :-)

There is no reason to believe that, because there is no precedent either way for online social media as social media did not exist before the passage of the law. If looking at offline media that publishes submissions from users this opinion is absolutely false.

Offline media curate user submissions. They don't just blindly publish anything sent to them. No magazine is accidentally publishing CSAM because someone sent it in.

In any case, we can, in fact, believe it. The entire point of the statute is to cover user-generated content, which is exactly what social media is.

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