Ninth Circuit Panel Goes Out of Its Way to Question Section 230–DOE vs. Meta
blog.ericgoldman.org
blog.ericgoldman.org
For context Section 230 avoids strict liability for an "interactive computer service" hosting third-party content. For comparison, a first-party site (eg a media site) does have strict liability.
Here's the problem and what (IMHO) will become a big issue: if you, as a platform, only push out content with a particular view, how is that any different to just publishing that view and thus being liable?
Put another way: modern tech companies want to have their cake and eat it too. They want the protections from strict liability and, while hiding behind that shield of third-party content, they analyze the content of posts and they push or suppress posts based on the content. How is that any different to being a first-party publisher?
Example: if 10,000 people write posts for or against South African apartheid and I suppress only those posts that argue against it, aren't I, in effect, publishing a pro-apartheid position?
I think this is a landmine waiting to go off. Tech companies have successfully sold us on the idea that "the algorithm" is somehow agnostic or neutral. Nothing could be further from the truth, particularly with modern AI tools that can deeply classify posts based on their content, politics, etc. Meta's policy chief bragged about doing this [3].
People on HN seem to have this weird, third-rail stance on Section 230. It's nuanced.
Legally, I think making algorithmic decisions based on content should be treated as a first-party act of publishing. And I believe courts are going to get there.
[1]: https://news.ycombinator.com/item?id=47066527
[2]: https://news.ycombinator.com/item?id=46148529
[3]: https://theintercept.com/2024/10/21/instagram-israel-palesti...
That was basically the direction the ruling in Anderson v. TikTok was pointing, yes?
The question is going to be where you draw the line. For example, if HN's automated mechanisms make a post invisible (to anyone who doesn't have showdead enabled) after enough downvotes, is that "making algorithmic decisions based on content"? I don't think so, or at any rate I don't think it's at all the same as the kind of things the big tech giants do algorithmically. But the line needs to be carefully drawn.
It's an algorithmic decision based on content designed to influence the end user, it's exactly the same thing. Section 230 is scale invariant in that it applies to all sites hosting third party content, there is no reason to assume any regulation which replaces it would be any different.
That's certainly one way to view it, yes. Indeed, court rulings (prior to Anderson v. TikTok) basically took exactly this viewpoint.
Anderson v. TikTok, however, did not: that ruling found that TikTok could not claim Section 230 protection for its algorithms that recommended certain videos to users. But that ruling said nothing about moderation actions in general, such as the kind I described that HN routinely takes.
Those actions are "algorithmic", yes, but the algorithm is very simple, and its key input comes from users, not the platform: basically "if a post gets x or more downvotes, put it into this different category that means users won't see it unless they opt in to seeing posts in this category". In other words, HN is not using its own data (like what kinds of posts a user has looked at, or viewed longest, etc.--I don't think HN even collects such data) to decide what posts to "recommend" (or perhaps in this case "disrecommend") to users; it's just using user input that already exists (downvotes).
I think that difference is significant, but of course I'm not a lawyer. But I think it would be bad if that kind of moderation action got lumped in with the kind TikTok is being sued for, if the ruling in that suit, that TikTok can't claim Section 230 protection for its algorithms, holds up. I think sites like HN should have that protection, even if we decide to take it away from sites like TikTok for those particular kinds of algorithms. But, as I said, that line has to be carefully drawn.
One possible way of drawing the line might be to look at the particular language of Section 230: it talks about sites not being liable for good faith actions to restrict access to material they deem objectionable; but it does not talk about sites not being liable for actions taken to encourage access to material they think a user would like. HN's moderation actions are the former; but the TikTok algorithms that they're being sued for were the latter.
Section 230 isn't a limitation on speech and shouldn't be conflated as such. It's a liability issue for that speech.
Bringing this legal framework to HN I see three issues:
1. The flagging system is, I believe, largely automated. As such, it's user-driven and content-agnostic. But, flags can be reviewed and removed. Not sure how often that happens. Could that be an issue? My intuition says "no" but I'd probably have to think about it more to come up with a reason why;
2. Reddit lets you decide what order to see comments in. Newest, oldest, most popular, most controversial. HN doesn't. It used to be that you'd see vote counts and that got removed. I, personally, think that was a mistake. It at least gives the impression it's to hide just how much the thumb is on the scale. Personally, I prefer the transparency of the Reddit model. But would it be an issue with this interpretation of Section 230? It doesn't feel like it;
3. The general ranking of submissions. As any long-time user would know, some stories fall off the front page real quick. Some get flagged outright. There's user signal and action here but also direct admin action. Is this an issue? It doesn't feel like it, particularly because it seems to be largely content-agnostic. Dang has said they try and maintain quality by getting rid of low-quality posts or posts prone to flamewars. That's fair enough. I tend to think this avoidance of flamewars is abused by end users to trigger such actions if they don't like the topic. Thread arson is real.
The extreme end of being content agnostic is having a site full of raw milk drinking, Ivermectin and antisemitic conspiracy theories. Nobody wants that so it should be possible to maintain quality or even just a subject focus. Like a subreddit dedicated to model trains shouldn't have to suffer posts about raw milk.
It's a complex issue and I'm not sure how it's going to end. My main point is that the types of content suppression (and the opposite) done by the likes of Twitter and Meta platforms based on the content thereof will eventually draw the attention of the courts who will scrutinize those actions based on their intended goals and the net result will be that third-party strict liability immunity under Section 230 simply won't be absolute.
Let say investigators would look at ycombinators and the design of the algorithm. Do we expect to see a major publishing-style on what content get promoted? Doubtful. There have been exception where they seem to have done moderation that has been close to publishing, like the early time around metoo, but they seem also to have been fairly open that they were experiment with moderation and testing how it effected the community. I remember HN moderator posts in the past talking a bit about promoting important articles or demoting tiresome topics.
While much abusive speech can be blocked from being published with this sort of Prior Restraint, much more healthy, vital speech — that counters abuse — would be repressed by it, IMHO. See how litigation involving copyright law has been used by the Church of Scientology to silence critics, for example. The removal of 230 means platforms themselves could be targeted to efficiently censor large sections of the population.
And the basic principle of Prior Restraint flies in the face of the presumption of innocence that underlies conduct in a Free Society.
I'm not advocating to repeal section 230 but honestly all I'm seeing here is upsides.
Only as long as you don't allow third party comments or run a multi-user instance. Then you're just as legally liable for that content as the centralized platforms.
>Further, paid hosting services for those would be unaffected for the same reason that we don't require section 230 to protect the car rental company if someone uses the vehicle to commit a crime.
Mixed metaphors aside, Section 230 is the law that "protects the car rental company if someone uses the vehicle to commit a crime."
If the car rental company is the platform, then prior to Section 230 (and after its repeal) they were and would be held responsible.
Section 230 just establishes that the party posting content is liable for that content, just as the person using a vehicle to commit a crime is responsible for that crime.
Well yeah, that was exactly my point.
> Mixed metaphors aside
It wasn't a metaphor, I meant that quite literally. If you rent a car there is no section 230 protection and yet the company is not liable unless they knowingly aid you in committing a crime. Network service offerings aren't magically different. Selling something (in a sufficiently neutral manner) does not generally leave you with any liability for the customer's actions.
It's only when you start operating your own service that republishes user submitted content that section 230 suddenly becomes relevant (at least AFAIK). If you want an analogy I guess it would be like offering free use of your fleet of vehicles to strangers off the street with zero due diligence and then the law exempting you from liability for any subsequent actions of those strangers.
Anyway I'm not advocating to repeal it. Personally I think the issue is that social media operators editorialize via algorithm, abusing section 230 to dodge responsibility.
IDK why you think this. 230 is brief; it doesn't distinguish between size of internet entities. It protects every site that hosts a comment section from bad-faith lawsuits by deep pockets who don't like that speech.
That's all it does. It doesn't provide cover for illegal activity or any of the other 1k things it gets accused of.
If so, removing 230 would bring the greatest harms to the smallest (aka largest number of) sites.
In case we have a misunderstanding, I wasn't describing the current common practice of rather large multi-user AP nodes. Rather I had in mind the idea of each user hosting his own instance, or at most perhaps exceedingly small multi-user instances for immediate family or a hobbyist group or similar. Those are all situations where section 230 currently offers approximately zero benefit to the operator as I understand it.
230 protects every site with a comment section (from SLAPP, etc suits). That includes a lot of blogs, inc self-hosted.
As such I'm not convinced that anything of value would be lost. That said as I've stated in other comments I'm also not in favor of that.
who knows.
Everyone always has some excuse for why they believe their favorite websites and platforms wouldn’t be impacted, but generally these problems would result in a situation where only the big platforms like Facebook could afford to comply and the platforms like Hacker News or all of your favorite forums and chat hangouts would be forced to close because they can’t afford to comply with laws making them liable for user generated content.
Repealing 230 would only consolidate power among the big social sites who can afford to comply and lobby.
The rest of us would have to beg for their permission to let our words be heard?
I don’t think you’ve thought this fantasy through.
Only the large powerful outlets will have the budgets and legal connections to host user submitted content.
In both Meta and Google's case, it has been found that it doesn't "consist entirely of user-submitted content", there is also "their software" promoting and recommending content and allowing to pay for higher visibility, and they should certainly be liable for at least this facet of what they do (and were both recently found to have intentionally designed it to be "harmful").
There is also the open question of whether the big tech companies are doing enough to police their platforms, which are all awash with scams, counterfeits and more. Their safeguards for "user-generated content" (somehow including physical goods on Amazon and apps for Android and iPhone) are another facet they should be liable for if it is insufficient.
There just wouldn't be that middle area where social media sites get to choose what you are allowed to say or read just because they have a monopoly on the data.
For instance, you could run your own individual Hacker News site that collects the data and creates the same thing you see today - except you could choose to only view posts and comments by sources verified as humans. Or you could turn on 'show dead' on a grander scale - your choice.
Section 230 isn't required for social media.
It’s baffling how many people think repealing Section 230 would make it easier for small people to host user-submitted content.
It would do the inverse: It would make hosting user submitted content legally untenable for all but the biggest players with the biggest ad budgets to comply with the laws.
It shouldn't be baffling to you; it's not even a hard problem to solve, and the only reason why things like ActivityPub aren't done more today is because of 230. A monopoly on data gives centralized social media an unfair advantage that's only possible through legal immunity.
You can already host your own content. Bandwidth is a non-issue right now.
You’re ignoring, or don’t understand, that the benefit of social media is sharing and distribution. The repeal-230 people always have some fanciful ideas about an alternative system appearing to fill the void and that it will be better for reasons, but the bottom line is that without some protection for services to share content it’s going to be negligible exposure.
Only the few with access and connections to the well-connected large media outlets would have distribution. It would be a total self-own for small people who want to share something.
In legacy media the platform is responsible for the content they present you. On new media platforms they are pushing out foreign propaganda and getting financially rewarded for it.
Repeal 230 and put all the controls of recommender system into the hands of the user. Present information chronologically by default.
Setting aside the valid point about self hosting made by another commenter, I'll note that we don't have to throw the baby out with the bathwater here. Section 230 need not apply to outlets that make "editorial" decisions and can remain in place for places that operate in a largely neutral and transparent manner (for example HN as I understand it).
I see no reason not to hold a tabloid responsible for what it publishes and I further see no inherent reason that highly customized feeds utilizing black box recommendation algorithms designed to benefit the operating party shouldn't be viewed as a form of hands on content promotion (ie editorial in nature).
To me the current arrangement seems like laundering responsibility with "well the algorithm did that, not me" which (IMO) is about as valid as "we didn't violate any financial regulations because we did it all in crypto".
Following you final state and some of the other sub threads, I think removing section 230 hurts larger sites more than smaller ones but also I think its a silly point. If the opposite was true that it benefits small sites more why does 90% of internet traffic go yo just the top 1000 sites? Its because there is no liability and cost to operate in ways that hurt people and the world. A reduced order of the algorithms say chronological ordering or basic vote systems perhaps deserve section 230 protection but the friction roster of videos custom order to capture attention is a type of content production and perhaps needs regulations
I would happily let HN go if it's death resulted in facebook and twitter dying along with it. I personally believe the benefits to wider society would outweigh me not being able to read some interesting articles and argue in comment threads.
> Repealing 230 would only consolidate power among the big social sites who can afford to comply and lobby.
Unfortunately, yeah. guess i'm gonna be stuck arguing in comment threads for a while longer then =(
In the modern landscape, where practically every mainstream (and most of the non mainstream even) platform has extensive policies and applies them in a manner that's equivalent to editorial control, they are no longer a common carrier, they are a publisher.
Should that exemption and safe harbor be expanded to all publishers? If no, do you really want the Government picking and choosing favorites? Either way you choose, I believe there will be many first and further order implications.
You can either get Congress to modify the definition, or you could try to get a case through the courts to clarify its interpretation. As one of those indirect implications, I am actually not sure which one would be more of a footgun.
No, the writers of Section 230 (Ron Wyden and Chris Cox) envisioned the opposite, that websites hosting user-generated content would not be common carriers, would be free to develop new ways to moderate and curate content as they wished, and could not be punished for applying their own viewpoints to their moderation.
From Wyden's and Cox's amicus brief in Gonzalez v. Google confirming that targeted recommendations are protected by Section 230 [1] (related summary at [2]):
> Section 230 does not permit the Court to treat YouTube’s recommendation of a video as a distinct piece of information that YouTube is “responsible” for “creat[ing],” 47 U.S.C. § 230(f)(3).
[...]
> Section 230 protects targeted recommendations to the same extent that it protects other forms of content curation and presentation. Any other interpretation would subvert Section 230’s purpose of encouraging innovation in content moderation and presentation.
From Wyden's and Cox's reply comments to an FCC rulemaking process regarding whether the FCC has authority to interpret Section 230 (it does not) [3]:
> The first is that Section 230 does not require political neutrality. Claiming to “interpret” Section 230 to require political neutrality, or to condition its Good Samaritan protections on political neutrality, would erase the law we wrote and substitute a completely different one, with opposite effect. The second is that any governmental attempt to enforce political neutrality on websites would be hopelessly subjective, complicated, burdensome, and unworkable. The third is that any such legislation or regulation intended to override a website’s moderation decisions would amount to compelling speech, in violation of the First Amendment (regarding which, see section VIII below).
[...]
> The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity.
The above quoted statements denying a requirement of political neutrality apply equally if you replace "political neutrality" with the more general "viewpoint neutrality".
[1] https://www.wyden.senate.gov/imo/media/doc/211333%20bsac%20W...
[2] https://www.wyden.senate.gov/news/press-releases/sen-wyden-a...
My read of section 230 is that they do, and part of that responsibility is remediating bad content as soon as possible?
Whether that is currently being done to the fullest extent is debatable, but I dont see how getting sued into the ground for hosting user content at all even if they remediate it is better?
No. Section 230 protects websites from the liability that they might otherwise bear upon removing objectionable content. You may ask, why would removing objectionable content give someone liability? Because for legal "simplicity" some people want to treat the act of removing harmful content as legal knowledge that the harmful content existed, and if the website was "too slow" to remove harmful content then surely the website should bear responsibility for the harm caused by being "too slow" or possibly complicit.
This thing where we've traded societal trust for profits for the companies destroying it is a bad choice, and section 230 is what enables it. Let it all burn. Bring back small communities with internal trust relationships. Growth is not an automatic good.
(No, pointing out that I wouldn't be allowed to post this isn't a clever gotcha. The whole point of advocating for change is that it would affect me too.)
Good, then we're in agreement on that.
> This thing where we've traded societal trust for profits for the companies destroying it is a bad choice
We're in agreement on that too.
> section 230 is what enables it.
Here is where we disagree. Section 230 is not what enables the big tech giants. Section 230 is what protects sites like this one, that do not do the sorts of things the big tech giants do, but do host user-provided content. Without Section 230, ycombinator would have to be prepared to defend every moderation action it takes in court. The big tech giants actually don't care whether or not they have to do that; the cost of that is hardly even rounding error in their accounting. If Section 230 were repealed, they'd be fine; maybe they'd have to charge some more for ads on average to make up the difference. Big deal.
Sites like this one, however, would not be fine. Ycombinator might still be able to keep this site up, because they're well enough known that they might be able to get some political traction if someone took them to court. But the "small communites with internal trust relationships" that you talk about? Those need something like Section 230 to avoid being sued out of business by the first a*hole that wants to post there and is told they can't because of their behavior, and has enough time and effort to spare to take them to court.
If we want to outlaw something that might put a spoke in the wheels of the big tech giants, IMO it would be the ad-supported business model--the idea that a large corporation providing a service that's of obvious value to billions of people can get out of any responsibility towards those people simply by saying, well, we're providing the service for free, take it or leave it. And then saying they need to monetize those same people's data to stay in business, because, well, how else are we going to pay for this valuable service we're providing?
I think Mike Masnick has a superb grasp of the salient issues, and is articulate. I recommend his writing on the topic.
https://www.techdirt.com/2021/10/29/everything-you-know-abou...
But:
"Plaintiffs characterize Meta’s duty as one of product design—that Meta should not have built Facebook in a way that boosted incitements to violence. Still, the alleged defects relate to Facebook’s core design as a publishing platform, particularly how Facebook promoted or downplayed third-party posts using algorithms. Under our case law, matching users with content is publishing conduct, even when the user has not requested the content."
At issue the question of who, if anyone, is responsible for the speech issues at play when Meta chooses to show me X rather than Y of the near infinite pool of content at its disposal.
Some are indeed looking to completely get rid of 230, but if you ask me, assuming that Meta has 230 protections for all editorial decisions it makes should be considered overbroad. I'm no lawyer, but as a citizen it seems to me that it puts Meta's influence beyond legal accountability in a way that no individual is. And that seems totally unfair.
So although I functionally agree that responsibility should be shared more, I haven’t seen a framework that accomplishes that. Organizations just stop allowing user generated content entirely, not addressing how they syndicate it
This would make every site hosting user generated content vulnerable to expensive lawsuits by authoritarians, deep-pocket censorists and other bad faith actors.
230 enabled most of the internet - specifically the rise of small sites.
Getting rid of 230 would be a massive gift to large platforms who'd be the only ones who could afford the legal bills. Which is why many large platforms have supported ending 230.
The major social media sites know absolutely that their products expose customers and users to predictable harm and cause real damages. They should bear an analogous liability burden as a business operating a physical location.
Sounds great. Last I checked, most businesses don't have a legal obligation to police the conversations that happen on or around their premises.
You're also wrong though - a corporation is absolutely liable for threats and various types of verbal harassment that occurs within their walls. Thus the endless liability-offsetting mandatory training videos... Duty of care is well established.
From its employees or contractors, possibly. From customers or visitors? Absolutely not.
> ...the conversation is an integral part of the product.
For telephone, text messaging, and mail [0] the conversation is an integral part of the product. And yet, somehow they don't have this "liability burden" you're asserting is borne by everyone who provides a service or a space where people could plausibly speak with each other.
[0] ...both e- and snail- variants...
https://www.mbm-law.net/insights/premises-liability-for-thir...
Here's a more nuanced example discussing liability to foreseeable harm by a third party on a business's premises:
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/1995/1995-O...
It is of course differently illegal to use the mail (in the US at least) for criminal activity.
Another way to think about this is, if this liability didn't generally exist, why do platform providers require a special protection?