Up is down and down is up when it comes to one of the most important, and now controversial, US legal protections for internet companies.
Section 230 of the Communications Decency Act gives internet platforms blanket legal protections concerning the content posted by others on, or through, their services. Until recently it was a holy cow: untouchable and frequently praised as the reason that companies like Google and Facebook were able to exist in the first place.
But as those internet giants have grown increasingly disliked - in no small part thanks to them imagining themselves to be immune to normal legal pressures - so lawmakers have grown tired of the catchall get-out-of-jail card. It’s created some strange situations.
This week, former vice-president and presidential hopeful Joe Biden went public with his view on Section 230: it should be scrapped. He was attacking Facebook’s policy of not fact-checking political ads - which has the real-world effect or allowing political campaigns to make up blatant falsehoods and promote them to millions of voters.
“You can’t do what they can do on Facebook,” said Biden to CNN in a town hall setting. “You can’t just say anything at all and not acknowledge it when you know something is fundamentally not true.”
He then turned to Section 230 when he said: “I, for one, think we should be considering taking away the exemption that they cannot be sued for knowingly engaged in promoting something that's not true.”
But of course it wouldn’t be a politician interview if there wasn’t an enormous dose of hypocrisy and irony and in this case it’s the fact that Biden voted for Section 230 in 1995. It passed the Senate 81-18.
Another dose of irony: it was Facebook’s actions that started the ball rolling on the whole idea that Section 230 wasn’t impenetrable.
Short term gain
The whole of Silicon Valley was squarely behind absolute defense of the clause while it was under serious assault by politicians because of an extraordinary sex trafficking case.
That case centered around Backpage.com, which was seen to be actively hiding behind Section 230 as a way of avoiding liability for a flood of sex trafficking ads on its website. Senators were livid at Backpage’s refusal to engage with them while continuing to rake in money from the ads and so they fought to add an exemption to Section 230 for sex trafficking. The tech world held firm and it looked as though the fight was lost.
But then Facebook, faced with enormous pressure of its own thanks to a series of scandals including Russian election manipulation, Cambridge Analytica and persistent disregard of its users’ privacy, made a political calculation and decided to back away from protecting Section 230 in order to win back some goodwill from Congressmen.
The exemption was inserted, the Section 230 dam was broken and Facebook got some breathing space from politicians considering breaking it up. That decision has now boomeranged back on Facebook because it just can’t help itself but make terrible policy decisions.
Thanks to its policy of allowing politicians to lie without recourse, and faced with an upcoming presidential election where the incumbent is frequently economical with the truth, Facebook is now squarely in the sights of lawmakers and is relying on Section 230 to keep the social network free of legal challenges.
But wait, there are more ironies to come.
Another high-profile critic of Section 230 has been the CEO of Salesforce, Marc Benioff. He also dislikes Facebook’s recent pontifications about free speech.
In a tweet last month, Benioff was fervent: “Facebook is a publisher. They need to be held accountable for propaganda on their platform. We must have standards and practices decided by law. Facebook is the new cigarettes - it’s addictive, bad for us, and our kids are being drawn in. We need to abolish section 230 indemnifying them.”
A black-and-white position. Except it was Section 230 that Salesforce has relied on to protect it from the full force of the law in the ongoing case against Backpage.com. Yes, the sex trafficking website that kicked this all off.
Salesforce provided cloud services to Backpage, and the people suing Backpage for sex trafficking are also seeking to find Salesforce liable for supporting the company. Last month, the judge threw that part of the case - based entirely on Section 230 grounds.
Salesforce was an internet platform supplying services to Backpage and hence covered by the law’s blanket legal protections, its lawyers argued - and the judge agreed. Even the changes made to Section 230 over this very case were insufficient to find Salesforce liable.
And so the company is out the case and off the hook - all thanks to a law that its CEO has said “needs to be abolished.”
And here comes the EFF
And just in case you thought irony only flows one way when it comes to Section, 230, you need only consider a filing, again this week, by internet freedom fighters the Electronic Frontier Foundation (EFF).
The EFF has filed an amicus brief arguing that a recent decision by the Ninth Circuit “threatens internet users’ ability to tailor their online experiences by increasing legal liability for companies that build Internet filtering tools.”
The case is somewhat extraordinary: one antivirus company Malwarebytes blocked the software of a rival - Enigma - as a "potentially unwanted program” meaning that it wouldn't work on machines that had Malwarebytes’ software on.
Enigma sued, claiming that Malwarebytes was retaliating against it because it had sued a tech support blog that was affiliated with Malwarebytes after the site had published a bad review of its software.
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Malwarebytes’ defense was, you guessed it, Section 230. Under Section 230, Malwarebytes argued that it has immunity in attempting to block content that is violent, of a sexual nature, or "otherwise objectionable.” And it won in district court but then lost on appeal because the appeals court ruled that Section 230 immunity does not apply for anti-competitive purposes.
And so Malwarebytes is appealing that decision and the EFF is supporting the appeal because the EFF is the only one in the entire Section 230 argument that has stuck to the same position it had a year ago. It believes that Section 230 is sacrosanct and should not be messed about with. Or, more precisely, in its brief, it argues that there is no anti-competitive aspect to the clause.
But by sticking to its guns, the EFF has ended up in the uncomfortable position of defending a pretty obvious abuse of the very immunity rules it is seeking to defend.
It’s almost as if granting blanket legal protections because lawmakers can’t, or won’t, or are unable to dig into complex topics sufficiently well to craft appropriate legal language isn’t a good long or medium-term solution.
And learning that lesson, we now have Biden and Benioff arguing for the complete opposite: a scrapping of Section 230 altogether. We are ruled by idiots. ®