S230, the two-faced "free speech law"

Posted on Mon 16 November 2020 in opinion

Disclaimer: IANAL, and I don't pretend to play one on YouTube.

Update: follow up inspired by some interesting feedback from HN.

S230 is supposed to be the great protector of free speech, and it has contributed a lot to that effect. However, its defenders often gloss over the fact that it is ultimately a regulation on censorship and liability, not a full-throated defense of anything resembling free speech. That's by design because S230 was not part of a full-throated defense of free speech, but part of a law aimed at driving the American Internet as close as legal possible to a "G-rated" content system.

The law itself has two important components: a portion which formally declares--sensibly--that the platform is not the speaker and not liable for the speech on it under many circumstances. It actually carves out many examples including criminal law so things like the many criminal havens on the Dark Web could not cite it in their defense. The other part is a near free-for-all permission from Uncle Sam to nuke nearly any bad content free from civil liability.

It's that last part that is problematic. Extremely problematic. Here is the actual law, so reasonable people can reason about what current federal law actually says rather than debating whose 750 word legal analysis on this or that site is more correct:

(2) Civil liabilityNo 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).[1]

The two terms, harassing and otherwise objectionable, are not restricted by a reasonable person standard. They merely require good faith. As I said, I'm not a lawyer, but it is extremely likely that any half-hearted attept to propose how something could be hypothetically objectionable to the moderator would be sufficient to make most courts consider the action covered.

Now, let's dive down the rabbit hole a little bit. This lovely bit of legalese has a partner in crime in that bill that wrecks havoc on the democratic process:

(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.

What's inconsistent with this provision? Let's name a few:

  1. A state consumer protection law that requires a reasonable person standard before deleting user-generated content.
  2. All state contract law that would enable legal action to enforce a contract or terms of service that a party felt were violated by the moderator.
  3. Even just a state law that says "you must give users a window of 24 hours to export their data and leave."

Such laws would obviously be inconsistent with this section per S230 because they place barriers to the immediate removal/destruction of content covered by S230. It's now important to understand how far this goes. Here is the definition of "Interactive Computer Service" as referenced in the law:

(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.

That doesn't just cover Facebook, Twitter or Medium. It covers AWS, GCP, Azure, even podunk hosting providers. With enough torturing, a lawyer could probably include literally every company that provides some sort of material assistance to the publication of content online aside from electrical utilities.

As written, the law provides little in the way of legal protection for free speech online through the courts. It can easily enable the harassment of speech right off the Internet with all the companies involved having to do is nod assent to the justification for why it is legal, but too awful to allow online.

In short, it's ultimately a massive hand out to business interests that potentially cripples the ability of other parties to sue for damages when content is lost. This doesn't mean S230 should be abolished, but it's time for free speech advocates to demand the law be updated and more balanced. It needs to actually be objectively about maximizing freedom of speech consistent with other laws, which is clearly never was.