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October 20, 2021

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Now It’s Harvard Business Review Getting Section 230 Very, Very Wrong

from the c’mon-guys dept

It would be nice if we could have just a single week where some major “respected” publication could do the slightest bit of fact checking on their wacky articles on Section 230. It turns out that’s not happening this week. Harvard Business Review has now posted an article saying It’s Time to Update Section 230 written by two professors — Michael Smith of Carnegie Mellon and Marshall Van Alstyne at Boston University. For what it’s worth, I’ve actually been impressed with the work and research of both of these professors in the past — even though Smith runs a program funded by the MPAA, that publishes studies about the internet and piracy, his work has usually been careful and thorough. Van Alstyne, on the other hand, has published some great work on problems with intellectual property, and kindly came and spoke at an event we helped to run.

Unfortunately, this piece for HBR does not do either Smith or Von Alstyne any favors — mainly because it just gets so much wrong. It starts out, like so many of these pieces, with some mythmaking, that Section 230 was passed due to “naive” techno-optimism. This is just simply wrong, even if it sounds like a good story. It then (at least) does highlight some of the good that social media has created (Arab Spring, #MeToo, #BlackLivesMatter, and the ice bucket challenge). But then, of course, it pivots to all the “bad” stuff on the internet, and says that “Section 230 didn’t anticipate” how to deal with that.

So, let’s cut in and point out this is wrong. Section 230’s authors have made it abundantly clear over and over again that they absolutely did anticipate this very question. Indeed, the very history of Section 230 is the history of web platforms trying to figure out how to deal with the ever-changing, ever-evolving challenge of “bad” stuff online. And the way that 230 does that is by allowing websites to constantly experiment, innovate, and adapt without fear of liability. Without that, you create a much worse situation — one in which any “false” move by the website could lead to liability and ridiculously costly litigation. Section 230 has enabled a wide variety of experiments and innovations in content moderation to figure out how to keep platforms functioning for users, advertisers, and more. But, this article ignores all that and pretends otherwise. That’s doing a total disservice to readers, and presenting a false narrative.

The article goes through a basic recap of how Section 230 works — and concludes:

These provisions are good — except for the parts that are bad.

Amusingly, that argument applies to lots of content moderation questions as well. Keep all the stuff that’s good, except for the parts that are bad. And it’s that very point that highlights why Section 230 is actually so important. Figuring out what’s “good” and what’s “bad” is inherently subjective, and that’s part of the genius of Section 230, is that it allows companies to experiment with different alternatives in figuring out how best to deal with things for their own community, rather than trying to comply with some impossible standard.

They then admit that there are other, non-legal, incentives that have helped keep websites moderating in a reasonable way, though they imply that this doesn’t work any more (they don’t explain why or how):

When you grant platforms complete legal immunity for the content that their users post, you also reduce their incentives to proactively remove content causing social harm. Back in 1996, that didn’t seem to matter much: Even if social media platforms had minimal legal incentives to police their platform from harmful content, it seemed logical that they would do so out of economic self-interest, to protect their valuable brands.

Either way, from there, there article goes completely off the rails in ways that are kind of embarrassing for two widely known professors. For example, the following statement is entirely unsupported. It is disconnected from reality. Hilariously, it is the very “misinformation” that these two professors seem so upset about.

We’ve also learned that platforms don’t have strong enough incentives to protect their brands by policing their platforms. Indeed, we’ve discovered that providing socially harmful content can be economically valuable to platform owners while posing relatively little economic harm to their public image or brand name.

I know that this is out there in the air as part of the common narrative, but it’s bullshit. Pretty much every company of any size lives in fear of stories of “bad” content getting through on their platform, and causing some real world harm. It’s why companies have invested so much in hiring thousands of moderators, and trying to find any kind of technological solution that will help in combination with the ever growing ranks of human moderators (many of whom end up being traumatized by having to view so much “bad” content). The idea that Facebook’s business isn’t harmed by its failures on this front or that the “socially harmful content” is “valuable” to Facebook is simply not supported by reality. There are huge teams of people within Facebook pushing back against that entire narrative. Facebook also didn’t set up the massive (and massively expensive) Oversight Board out of the goodness of its heart.

What Smith and Van Alstyne apparently fail to consider is that this is not a problem of Facebook not having the right incentives. It’s a problem of it being impossible to do this well at scale, no matter what incentives are in place, combined with the fact that many of the “problems” they’re upset about actually being societal problems that governments are blaming on social media to hide their own failings in fixing education, social safety nets, criminal justice reform, healthcare, and more.

This paragraph just kills me:

Today there is a growing consensus that we need to update Section 230. Facebook’s Mark Zuckerberg even told Congress that it “may make sense for there to be liability for some of the content,” and that Facebook “would benefit from clearer guidance from elected officials.” Elected officials, on both sides of the aisle, seem to agree: As a candidate, Joe Biden told the New York Times that Section 230 should be “revoked, immediately,” and Senator Lindsey Graham (R-SC) has said, “Section 230 as it exists today has got to give.” In an interview with NPR, the former Congressmen Christopher Cox (R-CA), a co-author of Section 230, has called for rewriting Section 230, because “the original purpose of this law was to help clean up the Internet, not to facilitate people doing bad things.”

First off, Facebook is embracing reforms to Section 230 because it can deal with them and it knows the upstart competitors it faces cannot. This is not a reason to support 230 reform. It’s a reason to be very, very worried about it. And yes, there is bipartisan anger at 230, but they leave out that it’s for the exact opposite reasons. Democrats are mad that social media doesn’t take down more constitutionally protected speech. Republicans are mad that websites are removing constitutionally protected conspiracy theories and nonsense. The paragraph in HBR implies, incorrectly, that there’s some agreement.

As for the Cox quote, incredibly, this was taken from a few years ago, in which Cox appeared to have a single reform suggestion: clarifying that the definition of an Information Content Provider covers companies that are actively involved in unlawful activity done by users. And, notably (again, skipped over by Smith and Van Alstyne) that interview occurred just after FOSTA was passed by Congress — and now it’s widely recognized how FOSTA has a complete disaster for the internet, and has put tons of people in harm’s way. That seems kinda relevant if we’re talking about how to update the law again.

But Smith and Van Alstyne don’t even mention it!

Instead, the fall back on tired, wrong, or debunked arguments.

Legal scholars have put forward a variety of proposals, almost all of which adopt a carrot-and-stick approach, by tying a platform’s safe-harbor protections to its use of reasonable content-moderation policies. A representative example appeared in 2017, in a Fordham Law Review article by Danielle Citron and Benjamin Wittes, who argued that Section 230 should be revised with the following (highlighted) changes: “No provider or user of an interactive computer service

that takes reasonable steps to address known unlawful uses of its services that create serious harm to others shall be treated as the publisher or speaker of any information provided by another information content provider in any action arising out of the publication of content provided by that information content provider.”

Of course, as we’ve explained, this is a solution that only a law professor who has never had to run an actual website could love. The problems with the “takes reasonable steps” argument are myriad. For one, it would mean that websites would constantly need to go to court to defend their content moderation practices — a costly and ridiculous experience, especially when you have to defend it to people who don’t understand the intricacies and trade-offs of content moderation. I saw this first hand just a couple months ago, in watching a print-on-demand website lose a court fight, because the plaintiff insisted that any mistake in its content moderation practices proved its efforts weren’t “reasonable.”

At best such a setup would mean that all content moderation would become standardized, following exactly whatever plan was chosen by the first few companies to win such lawsuits. You’d wipe out pretty much any attempt at creating new, better, more innovative content moderation solutions, because the only way you could do that is if you were willing to spend a million dollars defending it in court. And that would mean that the biggest companies (once again) would control everything. Facebook could likely win such a case, screwing over tons of competitors, and then everyone else would have to adopt Facebook’s model (hell, I wouldn’t put it past Facebook to offer to “rent” its content moderation system out to others) in such a world. The rich get richer. The powerful get more powerful. And everyone else gets screwed.

The duty-of-care standard is a good one, and the courts are moving toward it by holding social media platforms responsible for how their sites are designed and implemented. Following any reasonable duty-of-care standard, Facebook should have known it needed to take stronger steps against user-generated content advocating the violent overthrow of the government.

This is also garbage and taken entirely out of context. It doesn’t mention just how much content there is to moderate. Facebook has billions of users, posting tons of stuff every day online. This supposes that Facebook can automatically determine “content advocating the violent overthrow of the government.” But it does nothing whatsoever to help define what that content actually looks like, or how to find it, or how to explain those rules to every content moderator around the globe in a manner in which they’ll treat content in a fair and equitable way. It doesn’t take into account context. Is it “advocating the violent overthrow of the government” when someone tells a joke hoping President Trump dies? Is it failing a duty of care standard for someone to suggest that… an authoritarian dictatorship should be overthrown? There are so many variables, and so many issues here that to just toss out the idea that it’s obvious a duty of care was not taken to allow for “content advocating the violent overthrow of a government” that is just shows how ridiculously naive and ignorant both Smith and Van Alstyne are about the actual issues, trade-offs, and challenges of content moderation.

They then try to address these kinds of arguments by setting up a very misleading strawman to knock down:

Not everybody believes in the need for reform. Some defenders of Section 230 argue that as currently written it enables innovation, because startups and other small businesses might not have sufficient resources to protect their sites with the same level of care that, say, Google can. But the duty-of-care standard would address this concern, because what is considered “reasonable” protection for a billion-dollar corporation will naturally be very different from what is considered reasonable for a small startup.

Yeah, but you only find that out after you’re dead, spending a million dollars defending it in court.

And then… things go from just bad and informed, to actively spreading misinformation:

Another critique of Section 230 reform is that it will stifle free speech. But that’s simply not true: All of the duty-of-care proposals on the table today address content that is not protected by the First Amendment. There are no First Amendment protections for speech that induces harm (yelling “fire” in a crowded theater), encourages illegal activity (advocating for the violent overthrow of the government), or that propagates certain types of obscenity (child sex-abuse material).

Yes, that’s right. They trotted out the fire in a crowded theater trope, which already is wrong, and then they apply it incorrectly. It’s flat out wrong to say that there is no 1st Amendment protection in speech that induce harm. Much such content is absolutely protected under the 1st Amendment. The actual exceptions to the 1st Amendment (which, you know, maybe someone at HBR should have looked up) in this area are for “incitement to imminent violence” or “fighting words,” both of which are very, very, very narrowly defined.

As for child sex-abuse material, that’s got nothing to do with Section 230. CSAM content already violates federal criminal law and Section 230 has always exempted federal criminal law.

In other words, this paragraph is straight up misinformation. The very kind of misinformation that Smith and Van Alstyne seem to think websites should be liable for hosting.

Technology firms should embrace this change. As social and commercial interaction increasingly move online, social-media platforms’ low incentives to curb harm are reducing public trust, making it harder for society to benefit from these services, and harder for legitimate online businesses to profit from providing them.

This is, again, totally ignorant. They have embraced this change, because the incentives already exist. It’s why every major website has a “trust & safety” department that hires tons of people and does everything they can to properly moderate their websites. Because getting it wrong leads to tons of criticism from users, from the media, and from politicians — not to mention advertisers and customers.

Most legitimate platforms have little to fear from a restoration of the duty of care.

So long as you can afford the time, resources, and attention required to handle a massive trial to determine if you met the “duty of care.” So long as you can do that. And, I mean, it’s not like we don’t have examples of how this plays out in other arenas. I already talked about what I saw in court this summer in the trademark field (not covered by Section 230). And we have similar examples of what happens in the copyright space as well (not covered by Section 230). Perhaps Smith and Van Alstyne should go talk to the CEO of Veoh… oh wait, they can’t, because the company is dead, even though it won its lawsuit on this very issue a decade ago.

A duty of care standard only makes sense if you have no clue how any of this works in practice. It’s an academic solution that has no connection to reality.

Most online businesses also act responsibly, and so long as they exercise a reasonable duty of care, they are unlikely to face a risk of litigation.

I mean, this is just completely disconnected from reality as we’ve seen. That trial I witnessed in June is one of multiple cases brought by the same law firm against online marketplace providers, more or less trying to set up a business suing companies for failing to moderate trademark-related content to some arbitrary standard.

What good actors have to gain is a clearer delineation between their services and those of bad actors.

They already have that.

A duty of care standard will only hold accountable those who fail to meet the duty.

Except for all the companies it kills in litigation.

This article is embarrassingly bad. HBR, at the very least, should never have allowed the blatantly false information about how the 1st Amendment works, though all that really serves to do is discredit both Smith and Van Alstyne.

I don’t understand what makes otherwise reasonable people who clearly have zero experience with the complexities of social media content moderation to assume they’ve found the magic solution. There isn’t a magic solution. And your solution will make things worse. Pretty much all of them do.

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Filed Under: 1st amendment, content moderation, duty of care, fire in a crowded theater, incentives, marshall van alstyne, michael smith, section 230