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Speaker 1: Welcome to text Stuff, a production from I Heart Radio.

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Speaker 1: Hey there, and welcome to tech Stuff. I'm your host,

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Speaker 1: Jonathan Strickland. I'm an executive producer with I Heart Radio

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Speaker 1: and I love all things tech And what if websites

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Speaker 1: were held responsible for the content that other people post

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Speaker 1: to those websites. What if after a customer left a

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Speaker 1: bad review for a product online, the company that makes

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Speaker 1: that product would sue Amazon for hosting the review. What

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Speaker 1: if that company that makes the thing, what if they

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Speaker 1: won that lawsuit. What if Facebook were liable for the

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Speaker 1: posts made by its two billion users worldwide. If sites

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Speaker 1: were held accountable for the content that users and third

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Speaker 1: parties posted to them, we would not have the ornet

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Speaker 1: we have today. In fact, companies and organizations like Wikipedia, Amazon, Facebook, Twitter,

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Speaker 1: even Google wouldn't exist, or at least they wouldn't exist

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Speaker 1: in the forms they do today if that were the case. Now,

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Speaker 1: if you live in the United States, you might have

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Speaker 1: heard a bit about a section to thirty. Even if

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Speaker 1: you're outside the United States, you might have heard some

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Speaker 1: references to it. Now, if you're only casually following the

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Speaker 1: news or you just here section to thirty in passing,

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Speaker 1: it's probably pretty confusing. It clearly has something to do

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Speaker 1: with technology and liability and communication. President Donald Trump called

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Speaker 1: upon Congress to revoke it several times now, even threatening

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Speaker 1: to veto the funding of the National Defense Authorization Act

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Speaker 1: unless Congress repealed Section to thirty. But Trump is not

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Speaker 1: the only politician to call out this legislation. Representatives from

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Speaker 1: both the Republican and Democrat parties have proposed those changes

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Speaker 1: or even the outright elimination of Section to thirty over

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Speaker 1: the years. Heck, President elect Joe Biden has also called

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Speaker 1: upon the need to revoke to thirty. And if you

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Speaker 1: live in America, you might be surprised to hear that

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Speaker 1: Trump and Biden have agreed on something, though I guess

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Speaker 1: it's fair to point out they agree on the end result,

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Speaker 1: but for very different motivations. So in today's episode, I

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Speaker 1: want to talk about what Section to thirty is, where

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Speaker 1: it came from, what its purpose was and is, and

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Speaker 1: why there's so much discussion about the need to change

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Speaker 1: or get rid of it from various viewpoints across the

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Speaker 1: political spectrum. And I'll do my best to avoid any

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Speaker 1: political commentary, but I do want to say that the

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Speaker 1: motivations behind these various calls for change. They very a

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Speaker 1: great deal. I think a lot of folks in politics

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Speaker 1: agree that section to thy needs some attention, but they

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Speaker 1: don't all agree as to the reasons why or how

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Speaker 1: it should be done. So we're gonna get into all

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Speaker 1: of that. And before we jump in, I want to

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Speaker 1: recommend an amazing resource. It's a book by Jeff Kossa

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Speaker 1: titled The Twenty six Words That Created the Internet, and

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Speaker 1: it's all about section to thirty, from the genesis of

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Speaker 1: the idea to the implementation of Section two thirty in

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Speaker 1: court cases. And it's also a really good read, which

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Speaker 1: is a weird thing to say about a book centering

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Speaker 1: on a subsection of a huge telecommunications bill. I should

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Speaker 1: also add as a trigger warning that book discusses some

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Speaker 1: cases that deal with some really heavy, dark stuff. To

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Speaker 1: thirty has been tested in some really emotionally charged cases

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Speaker 1: that include truly awful things that have happened to people,

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Speaker 1: So fair warning if you do want to check that

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Speaker 1: book out and give it a read. Now. At the

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Speaker 1: heart of all of this are concepts like free speed,

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Speaker 1: each which has very wide protection in America, and liability

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Speaker 1: that is being held accountable legally accountable for something. Because

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Speaker 1: while there are broad protections for freedom of speech, it

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Speaker 1: is not absolute. There are some forms of speech and

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Speaker 1: expression that are not protected under the First Amendment. And

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Speaker 1: that's because free speech sometimes bumps up against other important

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Speaker 1: things like security or privacy, that kind of thing. So

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Speaker 1: it's one of those things where it's not pure black

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Speaker 1: and white. There's some shades of gray. Now, let's find

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Speaker 1: out what section to thirty is. And it's called Section

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Speaker 1: two thirty, so that suggests it's part of something bigger. Right,

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Speaker 1: it's a section of something. Well that it's a section

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Speaker 1: of a larger piece of legislation, and that piece was

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Speaker 1: the Communications Decency Act. So let's turn back the hands

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Speaker 1: of the clock a bit. Heck, maybe i'll maybe I'll

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Speaker 1: dust off the old text of time Machine for this one.

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Speaker 1: I don't think we've actually used it in years. Fortunately,

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Speaker 1: I did bring it home with me when our office

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Speaker 1: went into lockdown, so it's really just taking up space

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Speaker 1: in the corner. Hang on, hang on a second. I'm

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Speaker 1: just gonna get it out. I gotta move a couple

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Speaker 1: of things. Be right back. Alright, alright, so I've got it. Now,

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Speaker 1: let me set the dial back to uh, let's see

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Speaker 1: nineteen all right, Okay, here we go, everybody in, come on,

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Speaker 1: let's all get into the time machine. All right, Ready,

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Speaker 1: push the button, Frank, and here we are. It's The

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Speaker 1: number one hit single of the year is hold On

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Speaker 1: by Wilson Phillips, a song I'm not ashamed to say

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Speaker 1: I absolutely loved at the time, shows like Cheers, A

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Speaker 1: Different World and Murphy Brown, or on television that the

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Speaker 1: box office, the film Ghost comes out on top, with

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Speaker 1: Home Alone not far behind. But we're not here to

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Speaker 1: see the awkward transition of the nineteen eighties transform into

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Speaker 1: the nineteen nineties. Now, we're here to learn about how

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Speaker 1: US law would view the role of online platforms now

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Speaker 1: back in where we are now, the Internet isn't really

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Speaker 1: a thing as far as the mainstream public is concerned.

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Speaker 1: It exists, but hardly anyone knows very much about it

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Speaker 1: Outside of research facilities and government offices. There's no such

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Speaker 1: thing as the Worldwide Web. Yet, However, there are a

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Speaker 1: few big online service providers or OSPs. Now these are

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Speaker 1: sort of the predecessors to Internet Service providers or I

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Speaker 1: s p s, and OSP is kind of like its

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Speaker 1: own micro internet, though really, we would just kind of

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Speaker 1: call it a network. So think of it as a

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Speaker 1: self contained collection of servers that hosts stuff like forums

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Speaker 1: and newsletters and articles and files, and you're on the

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Speaker 1: right track, and they don't necessarily talk to each other,

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Speaker 1: so they're kind of self contained. Well, one of those

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Speaker 1: big OSPs is compu Serve, and it's going to get

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Speaker 1: taken to court. At the heart of the matter is

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Speaker 1: an accusation of libel that is, uh, a misinformation with

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Speaker 1: the intent to cause harm that's in print. The plaintiffs,

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Speaker 1: Robert Blanchard and a company called Cubby Incorporated, have developed

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Speaker 1: a news and rumors service called scuttle Butt, which focuses

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Speaker 1: on the radio and TV industries. Now, according to the plaintiffs,

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Speaker 1: a newsletter that is also that's called Rumorville USA, which

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Speaker 1: also covers rumors in the TV and radio spaces, has

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Speaker 1: published untrue and harmful things about scuttle Butt, and Rumorville

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Speaker 1: is available on compu Serve. So the plaintiffs targeted not

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Speaker 1: just Rumorville, but compu Serve in their lawsuits. So they

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Speaker 1: say compu Serve is responsible because it allows the distribution

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Speaker 1: of Rumorville, which in turn has published libelous content about

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Speaker 1: scuttle butt. So the lawyers representing Company Serve argue that

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Speaker 1: the service has no connection to Rumorville other than as

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Speaker 1: serving as a way for people to get the newsletter.

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Speaker 1: In other words, compu Service saying, hey, we don't write that.

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Speaker 1: We just have it on our service, but we don't

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Speaker 1: write it. There's no there's no employment here to generate

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Speaker 1: that newsletter. Compu Serve isn't involved editorially in the newsletter

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Speaker 1: at all. It just comes from another company. That company

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Speaker 1: is Don Fitzpatrick Associates of San Francisco, and it's referred

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Speaker 1: to in the court documents as d f A. Compu

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Speaker 1: Serve did not employ this company or pay for this

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Speaker 1: news letter. And moreover, according to the agreement between compy

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Speaker 1: Serve and d f A, d f A accepts full

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Speaker 1: responsibility for the contents of its newsletter. So compy serves

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Speaker 1: lawyers go and make a motion for a summary judgment,

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Speaker 1: which in this case was to dismiss the the the charges,

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Speaker 1: just for the court to make a decision on behalf

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Speaker 1: of one party against another party without the need to

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Speaker 1: go to a full trial. And the judge grants this

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Speaker 1: to Compy Serve. And the judge agrees that compu Serve

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Speaker 1: did not bear responsibility for the contents of this newsletter.

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Speaker 1: The judge says that compu Serve is kind of like

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Speaker 1: a bookstore, and you wouldn't hold a bookstore responsible for

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Speaker 1: the contents of a book that was published by a

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Speaker 1: third party just because it happens to be in that bookstore.

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Speaker 1: The bookstore is just that's where customers can buy books.

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Speaker 1: The store did not put the actual content into the books,

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Speaker 1: and this becomes a precedent that would serve as a

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Speaker 1: foundational building block for section to thirty later. All right, everyone, um,

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Speaker 1: we're done here. Let's all jump back in the time machine.

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Speaker 1: Come out, no stragglers. I don't want to have to

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Speaker 1: come back to lived through it. Once we're done. We

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Speaker 1: got a hop forward a couple of years. Okay, ready

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Speaker 1: push the button. All right, now we're in. So now

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Speaker 1: the number one song in America would be Ace of

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Speaker 1: Bases the Sign which I don't know about you, but

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Speaker 1: it opened up my eyes. I'm happy now. Seinfeld is

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Speaker 1: dominating TV ratings and the big movies at the box

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Speaker 1: office are The Lion King and Forest Gumps. So what

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Speaker 1: are we doing here? And now, well, this time we've

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Speaker 1: got another lawsuit, but this is one that's against a

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Speaker 1: different osp called Prodigy. Now. Like compu Serve, Prodigy hosts

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Speaker 1: stuff like forums and articles and their services on one forum,

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Speaker 1: and anonymous user alleged that a securities firm named Stratton

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Speaker 1: Oakmont was committing fraud in a stock offering and Stratton

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Speaker 1: Stratton Oakmont would sue Prodigy for liabel. Now, Prodigies lawyers

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Speaker 1: said that we shouldn't be held responsible for the content

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Speaker 1: that's posted by a third party by a Prodigy user,

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Speaker 1: and they cited the CompuServe ruling that came back a

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Speaker 1: few years earlier. But the judge in this case disagrees

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Speaker 1: with Prodigies lawyers. They rule against the service, and the

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Speaker 1: judge says that Prodigy exercised editorial control over the forums.

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Speaker 1: The service could and did remove material that was objectionable.

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Speaker 1: Unlike CompuServe, which had taken largely a hands off approach

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Speaker 1: to the stuff that was published on CompuServe, Prodigy got

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Speaker 1: more involved and would remove things that were in violation

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Speaker 1: of you know, community standards, and therefore that made Prodigy

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Speaker 1: not like a bookstore and made them more like a

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Speaker 1: publication like a newspaper, and the editorial control means that

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Speaker 1: Prodigy would have to assume responsibility for stuff that appeared

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Speaker 1: on the service. After all, if Prodigy intervenes in some cases,

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Speaker 1: it means it could and should have intervened in other cases,

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Speaker 1: like with Strattonoqumont. So we have that nine one decision

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Speaker 1: that says a platform is not responsible for third party

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Speaker 1: content published on that platform. But then we have a

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Speaker 1: nineteen five decision that seems to contradict that if the

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Speaker 1: platform exercised any sort of content management, that means that

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Speaker 1: they can be held liable. And I know we traveled

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Speaker 1: to nine respectively, but court cases can take a really

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Speaker 1: long time. So the decisions were actually handed down a

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Speaker 1: year after the initial lawsuits started. I'm sorry that we

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Speaker 1: all had to wait around so long for that. Well,

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Speaker 1: this created a precarious situation for online companies because the

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Speaker 1: message seemed to be that if you provided a space

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Speaker 1: for users and third parties to post stuff, it would

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Speaker 1: best suit you if you just never ever interfered with that,

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Speaker 1: regardless of what gets posted to the platform, because intervening

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Speaker 1: would be a slippery slope if you start removing content,

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Speaker 1: even stuff that clearly should not be there, like videos

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Speaker 1: of violence, or pornography, or death threats, or or personal

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Speaker 1: information of other users, whatever it might be. If you

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Speaker 1: remove it, no matter how obviously awful it is, you

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Speaker 1: create a precedent in which you are acting in an

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Speaker 1: editorial capacity. And if you can do that, then are

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Speaker 1: you really free of liability when someone posts something that's

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Speaker 1: libelous or otherwise illegal. And remember this is the mid nineties.

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Speaker 1: The online world hadn't even really started to take off yet,

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Speaker 1: so there was a real concern that we would see

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Speaker 1: a big negative impact, a chilling effect on the founding

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Speaker 1: and evolution of online businesses. Considering that people had generally

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Speaker 1: come to the belief that the internet was going to

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Speaker 1: be the future of business, or at least an important

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Speaker 1: component of business, this was a bad thing. Now, if

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Speaker 1: you guys pay attention out there, you probably know that

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Speaker 1: politicians typically lag behind big issues and technology. Technology changes

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Speaker 1: much faster than policies do. And a lot of politicians

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Speaker 1: in this country are in the United States, Um, how

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Speaker 1: do I put this delicately? They're old, Like a lot

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Speaker 1: of them are really old. The average age, the average

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Speaker 1: age of a congress person is twenty years older than

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Speaker 1: the average American in the average age of a representative

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Speaker 1: is fifty seven. For senators it's sixty one. And generally speaking,

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Speaker 1: older generations are a little a slower to pick up

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Speaker 1: on technological advances than younger ones. Now there are exceptions

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Speaker 1: to this, don't get me wrong, I'm not trying to

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Speaker 1: be agist here, but as a general rule, older people

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Speaker 1: are less up to speed on emerging technologies. I think

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Speaker 1: that rule applies double when it comes to politicians from

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Speaker 1: my own anecdotal experience, which I get isn't really evidence.

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Speaker 1: So while this was a growing concern within the tech world,

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Speaker 1: only a couple of politicians really picked up on how

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Speaker 1: these court decisions could create an issue and impede the

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Speaker 1: growth of online services in those early days. Now, that

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Speaker 1: pair included a Democrat named Ron Wyden and a Republican

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Speaker 1: named Chris Cox, who wanted to create legislation full stop.

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Speaker 1: They both wanted to make their mark, they wanted to

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Speaker 1: pass some laws, but at this particular time in American

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Speaker 1: history where it was really hard to do that because

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Speaker 1: partisan politics were any vicious at the time. I think

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Speaker 1: they were gentle as a kitten compared to today's politics,

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Speaker 1: but at the time it was considered pretty brutal, and

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Speaker 1: that meant there was very little chance to get agreement

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Speaker 1: across the aisle. Republicans at the time controlled both the

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Speaker 1: House and the Senate. In Congress in the United States

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Speaker 1: are our Congress is divided up into two branches, the

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Speaker 1: House of Representatives and the Senate. And a Democrat was president,

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Speaker 1: so president and a Republican Congress, and they figured. These

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Speaker 1: two people figured that their best chance at making an

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Speaker 1: impact was to find a topic that was so new,

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Speaker 1: so cutting edge that neither party had actually formed an

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Speaker 1: opinion about it. Yet the Internet was a perfect target.

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Speaker 1: And this, my friends, drives me bonkers because it points

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Speaker 1: out that the writing of section to thirty didn't begin

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Speaker 1: with politicians identifying an issue and then finding a way

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Speaker 1: to solve it. Instead, it was a case of a

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Speaker 1: couple of politicians trying to figure out what sort of problem,

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Speaker 1: any problem, could they find where they could potentially tackle

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Speaker 1: it and get their names on some legislation. Uh. It's

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Speaker 1: probably being a little unfair, but it is sort of

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Speaker 1: the reality of politics, and from a practical standpoint, I

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Speaker 1: get it. But it's also kind of disillusioning to me.

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Speaker 1: The pair determined that they would have a decent chance

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Speaker 1: at proposing legislation that would protect online services from being

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Speaker 1: sued for the content that other people were posting to

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Speaker 1: those services, plus give the services the freedom to moderate

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Speaker 1: content without fear of being sued for that. Either. The

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Speaker 1: Internet was so new and the potential was so huge

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Speaker 1: that they felt that this was a pretty good bet,

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Speaker 1: so they drafted out a proposed piece of legislation that

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Speaker 1: they called the Internet Freedom and Family Empowerment Act. It

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Speaker 1: would ultimately have as its core principle the following quote.

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Speaker 1: No provider or user of an interactive computer service shall

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Speaker 1: be treated as the publisher or speaker of any information

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Speaker 1: provided by another information content provider. End quote. Now. In addition,

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Speaker 1: the piece has what has been called the good faith section,

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Speaker 1: which states that platforms will not be held liable for

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Speaker 1: quote any action voluntarily taken in good faith to restrict

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Speaker 1: access to or availability of material that the provider or

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Speaker 1: user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing,

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Speaker 1: or otherwise objectionable, whether or not such material is constitutionally protected.

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Speaker 1: End quote. Now when we come back, we'll learn more

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Speaker 1: about what this actually means from a practical sense. But

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Speaker 1: first let's take a quick break. So on the face

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Speaker 1: of it, Section two thirty is fairly simple. You cannot

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Speaker 1: hold someone or thing, in the case of a platform,

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Speaker 1: as the person responsible for what someone else or something

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Speaker 1: else says on that platform. So that applies to the

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Speaker 1: services and the users. If I'm on a forum and

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Speaker 1: I'm making an argument for a certain point of view

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Speaker 1: and someone else joins them with libelious accusations about a

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Speaker 1: third person, it would be unreasonable to hold me accountable

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Speaker 1: for that other person's words. Right, I didn't say the

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Speaker 1: libelous thing, why would I be responsible for it. I

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Speaker 1: might have started the discussion thread, I might have initiated

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Speaker 1: the conversation, But if I didn't actually say anything libelous,

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Speaker 1: then I shouldn't be held responsible. Right. Well, that same protection,

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Speaker 1: according to this legislation, would apply to online platforms. In addition,

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Speaker 1: the platforms would be able to make their own moderation

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Speaker 1: policies and not be held liable if the platform removed

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Speaker 1: something that would otherwise be constitutionally protected. So, in other words,

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Speaker 1: if Facebook removed a post because it violated a Facebook standard,

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Speaker 1: even if that post would otherwise be protected constitutionally, Facebook

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Speaker 1: would not be held liable as long as that removal

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Speaker 1: was done in good faith. Now, in at the time

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Speaker 1: that Cox and Widen were putting together their proposal in

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Speaker 1: the House of Representatives, there was another piece of legislation

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Speaker 1: under consideration that aimed at the issue of pornography online.

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Speaker 1: But that was taking place over in the US Senate,

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Speaker 1: and this piece tried to treat online content in a

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Speaker 1: way similar to how the US government regulates content on

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Speaker 1: TV and on radio broadcasts. There was a growing concern

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Speaker 1: about the availability the accessibility of pornographic and obscene material.

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Speaker 1: Obscenity in this case would fall under a pretty conservative definition,

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Speaker 1: like you know, kind of like beauty, obscenity is in

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Speaker 1: the eye of the beholder. It's one of those things

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Speaker 1: that you know it when you see it. That's kind

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Speaker 1: of the famous quote in US history. But the proposed

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Speaker 1: legislation would criminalize the act of exposing those under eighteen

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Speaker 1: to obscene or pornographic materials online. Now, I should say

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Speaker 1: it covered instances in which the age of the recipient

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Speaker 1: or at least they're under eighteen status would have to

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Speaker 1: be known to the person or entity sending the material

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Speaker 1: for this to be relevant. The proposed legislation went a

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Speaker 1: bit further than that too, with sections related to speech

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Speaker 1: that is indecent but not obscene. Again, really weird gray

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Speaker 1: area territory here, but the language raised some concerns among

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Speaker 1: civil liberties organizations, so people made some pretty strong arguments

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Speaker 1: against this Senate version of the idea. For example, in

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Speaker 1: the medical industry, there's terminology that some people might define

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Speaker 1: as indecent that's absolutely critical for legitimate medical communication in

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Speaker 1: clear terms, So sites that provide useful information for sensitive

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Speaker 1: topics like educating people about sexually transmitted diseases or resources

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Speaker 1: for people who are in the g b t Q

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Speaker 1: plus communities, all that could be at risk if you

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Speaker 1: allowed this kind of legislation to go forward. So Ron

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Speaker 1: Wyden and Chris Cox were positioning their proposal in the

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Speaker 1: House of Representatives as kind of an alternative to the

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Speaker 1: approach that was being talked about in the Senate. They

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Speaker 1: suggested that online platforms have the ability to moderate content

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Speaker 1: on their sites without the risk of being held liable

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Speaker 1: for the stuff that people and other parties were posting

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Speaker 1: to those sites, And according to Kasaf, their idea met

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Speaker 1: with no resistance. In fact, barely anyone even noticed. In

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Speaker 1: the United States, the way Congress creates new laws requires

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Speaker 1: both the House of Representatives and the Senate to vote

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Speaker 1: on the legislation and approve it before sending that piece

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Speaker 1: on to the President to be signed into law or

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Speaker 1: potentially vetoed. In a case where both the House and

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Speaker 1: the Senate are working on something similar but distinct as

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Speaker 1: far as legislation goes, those two versions have to be

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Speaker 1: hashed out in committee to create a more unified approach.

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Speaker 1: Both the Communications Decency Act out of the Senate and

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Speaker 1: what would become Section to thirty in the House of

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Speaker 1: Representatives would ultimately be lumped in with the overall discussions

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Speaker 1: of what would become the Telecommunications Act of NIX. Most

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Speaker 1: of Congress was really focused on the other elements of

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Speaker 1: the Telecommunications Act. The stuff that related to telephone companies

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Speaker 1: and telephone infrastructure and cable companies and the Internet portions

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Speaker 1: were more of an afterthought. It was so new that

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Speaker 1: a lot of people weren't really thinking about that. They

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Speaker 1: were thinking, no, the futures and long distance phone calls,

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Speaker 1: Gosh darn't it. And so both the c d A

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Speaker 1: which had support due to it being positioned as a

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Speaker 1: piece of legislation that was advocating for family values, which, boy,

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Speaker 1: was that a big, big point of discussion in the nineties.

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Speaker 1: And then Section to thirty, which was positioned as protecting

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Speaker 1: new and a vulnerable industry. Both of them made it through.

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Speaker 1: So in the end, the language that would become Section

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Speaker 1: to thirty and the alternative proposal which would become the

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Speaker 1: online portions of the Communications Decency Act would be bound

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Speaker 1: together to form kind of a vultron like construction of

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Speaker 1: online policy. Now, the Telecommunications Act is enormous. It's a

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Speaker 1: beast of a law, covering stuff like telephone lines, cable television,

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Speaker 1: and more. Section to thirty is just a tiny part

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Speaker 1: of that beast. Interestingly, the anti obscenity measures in the

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Speaker 1: Communications Decency Act would not stand the test of time.

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Speaker 1: Judges would strike down large portions of it, citing issues

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Speaker 1: such as vague terminology like indecent and offensive without firm definitions.

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Speaker 1: That legislation was open to far too much subjective interpretation

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Speaker 1: to be useful. But while a lot of the c

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Speaker 1: d A would go by by Section to thirty remained intact,

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Speaker 1: so all that obscenity and decency stuff was gone, but

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Speaker 1: that section to thirty I idea from Widen and Cox

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Speaker 1: was still there. It wasn't brought into question in the

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Speaker 1: courts the way the parts of the c d A

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Speaker 1: that specifically dealt with indecency online did. But Section to

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Speaker 1: thirty went untouched and it was a doozy. So with

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Speaker 1: Section to thirty, online services received immunization from liability regarding

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Speaker 1: what their users and third parties published. Section to thirty

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Speaker 1: means that these entities things like Facebook, Twitter, Amazon, Google,

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Speaker 1: they cannot be held legally responsible for user generated content,

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Speaker 1: with only the most minute exceptions, and those most of

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Speaker 1: those would come much much later. It's sort of a

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Speaker 1: get out of jail free card. Especially in the early

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Speaker 1: days when drafting the language, Widen and Cox were careful

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Speaker 1: to avoid being too broad. Uh. The idea was that

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Speaker 1: outright criminal activities and stuff like copyright infringement wouldn't receive

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Speaker 1: full protection under too thirty, but pretty much anything else

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Speaker 1: was at least that was the potential for it. Now

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Speaker 1: here's the thing about laws. They get tested in the courts.

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Speaker 1: Courts are left to interpret and enforce laws. So Congress

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Speaker 1: writes the laws. The President approves the laws, but the

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Speaker 1: laws are interpreted and enforced in the court system, in

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Speaker 1: the judicial system, So the fact that the courts could

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Speaker 1: interpret this meant that there was still a question as

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Speaker 1: to whether the court would say that Section to thirty

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Speaker 1: would mean that online services would have a conditional shield,

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Speaker 1: a conditional immunity to liability as long as they did

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Speaker 1: operate in good faith, you know, kind of like if

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Speaker 1: they were told to remove something because it was illegal

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Speaker 1: or harmful, that they then went and did so, and

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Speaker 1: then they'd be fine. Or the courts could interpret a

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Speaker 1: different way. They could say that the protections are more

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Speaker 1: broad and they could give online services complete freedom from

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Speaker 1: liability unless an exception were to be applied. And as

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Speaker 1: it turned out, the court system leaned toward option number two,

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Speaker 1: that broad application approach, and it wasn't done lightly or easily.

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Speaker 1: I would love to go into this more, but it

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Speaker 1: would take up way too much time, and trust me,

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Speaker 1: this episode is going to be a long one. So

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Speaker 1: if you want to learn about the legal decisions that

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Speaker 1: would codify the extent to which Section to thirty protects

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Speaker 1: online services, read Jeff Kossoff's book that I mentioned earlier now.

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Speaker 1: When Widen and Cox put this plan together, their concept

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Speaker 1: was that these service providers, protected by immunity to legal

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Speaker 1: repercussions as far as user generated content is concerned, would

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00:27:38,440 --> 00:27:42,399
Speaker 1: be freed up to moderate that user generated content as

432
00:27:42,560 --> 00:27:44,920
Speaker 1: much as they needed to. The goal was to create

433
00:27:44,960 --> 00:27:49,359
Speaker 1: a safety structure so that Prodigy or America Online or

434
00:27:49,600 --> 00:27:53,399
Speaker 1: much later, Amazon or Facebook or Google would have the

435
00:27:53,520 --> 00:27:58,280
Speaker 1: freedom to exercise objectionable material off the site without risking

436
00:27:58,720 --> 00:28:03,080
Speaker 1: being seen as a published that has liability like Prodigy

437
00:28:03,359 --> 00:28:06,639
Speaker 1: was a few years earlier. And I've seen this described

438
00:28:06,720 --> 00:28:11,200
Speaker 1: as the sword and shield approach. The shield is that immunity,

439
00:28:11,280 --> 00:28:15,080
Speaker 1: and the sword is that editorial capacity to intervene without

440
00:28:15,280 --> 00:28:19,520
Speaker 1: fear of retribution. But there was a problem. Platforms began

441
00:28:19,600 --> 00:28:23,160
Speaker 1: to adopt a tendency to just rely on the shield part.

442
00:28:23,800 --> 00:28:28,040
Speaker 1: Frequently they did very little to editorialize or to moderate.

443
00:28:28,640 --> 00:28:31,520
Speaker 1: Now this might sound familiar to you. Over the past

444
00:28:31,520 --> 00:28:34,480
Speaker 1: few years, Twitter, for example, has come under fire for

445
00:28:34,560 --> 00:28:38,120
Speaker 1: being reticent when it comes to applying the company's own

446
00:28:38,280 --> 00:28:41,440
Speaker 1: terms of service as far as content goes. Time and again,

447
00:28:41,480 --> 00:28:45,520
Speaker 1: people have cited tweets from various users and asked Twitter's

448
00:28:45,560 --> 00:28:50,000
Speaker 1: management why such examples are allowed to stay on Twitter when,

449
00:28:50,520 --> 00:28:54,960
Speaker 1: but at least what is arguably a reasonable interpretation, those

450
00:28:54,960 --> 00:28:58,719
Speaker 1: tweets violate the code that Twitter says it has in place.

451
00:28:59,280 --> 00:29:02,600
Speaker 1: We've seen this a hunt with certain politicians in particular,

452
00:29:02,960 --> 00:29:05,440
Speaker 1: and it was only recently that Twitter would even flag

453
00:29:05,520 --> 00:29:10,600
Speaker 1: posts from prominent politicians like the President as containing misleading

454
00:29:10,640 --> 00:29:14,960
Speaker 1: information or untruths, and Twitter in no way rushed to

455
00:29:15,040 --> 00:29:19,440
Speaker 1: address this problem. I'll get to why they ultimately did later,

456
00:29:20,040 --> 00:29:22,920
Speaker 1: but spoiler alert, it doesn't really have anything to do

457
00:29:22,960 --> 00:29:25,760
Speaker 1: with Section to thirty. Now. I don't mean to just

458
00:29:26,040 --> 00:29:29,240
Speaker 1: single out Twitter and ignore everyone else, because, as I said,

459
00:29:29,680 --> 00:29:32,720
Speaker 1: it was far more common across the board for platforms

460
00:29:32,760 --> 00:29:35,360
Speaker 1: to take a very hands off approach when it came

461
00:29:35,400 --> 00:29:40,240
Speaker 1: to moderating content. Typically, they only stepped in during particularly

462
00:29:40,320 --> 00:29:44,160
Speaker 1: extreme or blatant abuses of the platform's policies, and not

463
00:29:44,240 --> 00:29:48,640
Speaker 1: always even then. All of this despite that immunity granted

464
00:29:48,680 --> 00:29:51,840
Speaker 1: by Section to thirty. There were a couple of reasons

465
00:29:51,840 --> 00:29:54,360
Speaker 1: for this. One is that, as I mentioned in the

466
00:29:54,400 --> 00:29:58,840
Speaker 1: Facebook algorithm episode that published last week, companies like Facebook

467
00:29:59,160 --> 00:30:04,040
Speaker 1: benefit financially from people being active on their platforms and

468
00:30:04,240 --> 00:30:09,920
Speaker 1: controversial posts generate a lot of action, so you could argue, hey,

469
00:30:09,960 --> 00:30:12,520
Speaker 1: that bad stuff that we would rather not have on

470
00:30:12,560 --> 00:30:15,520
Speaker 1: these platforms, that's making the platforms a lot of money,

471
00:30:15,680 --> 00:30:17,880
Speaker 1: so there's not a lot of financial incentive for them

472
00:30:17,920 --> 00:30:21,760
Speaker 1: to act against it. Second, over the past few years,

473
00:30:21,880 --> 00:30:25,520
Speaker 1: several platforms have emerged that seek to encourage trolling and

474
00:30:25,560 --> 00:30:29,240
Speaker 1: malicious behaviors. Like they're not just hosting it, their whole

475
00:30:29,320 --> 00:30:33,040
Speaker 1: purpose is to be a hot spot for that, and

476
00:30:33,080 --> 00:30:36,080
Speaker 1: they rely on Section to thirty to shield them from

477
00:30:36,080 --> 00:30:40,480
Speaker 1: repercussions because that immunity, at least at first, extended so

478
00:30:40,560 --> 00:30:43,680
Speaker 1: far that even if platform were to distribute or perhaps

479
00:30:43,680 --> 00:30:48,080
Speaker 1: even encourage the distribution of malicious content, it was still

480
00:30:48,080 --> 00:30:52,400
Speaker 1: protected as long as it was not generating the content.

481
00:30:52,600 --> 00:30:54,920
Speaker 1: If it was someone else was using their platform to

482
00:30:55,040 --> 00:30:58,240
Speaker 1: spread terrible stuff, they were still in the clear because

483
00:30:58,280 --> 00:31:01,040
Speaker 1: Section to thirty gave them that protect action. There were

484
00:31:01,080 --> 00:31:04,440
Speaker 1: numerous court cases that challenge this in different ways, including

485
00:31:04,480 --> 00:31:08,240
Speaker 1: ones that would see plaintiffs sup platforms for negligence for

486
00:31:08,320 --> 00:31:11,360
Speaker 1: failing to take down a harmful post after being told

487
00:31:11,400 --> 00:31:14,440
Speaker 1: about it, But early on courts and decided that if

488
00:31:14,440 --> 00:31:17,920
Speaker 1: they found in favor of plaintiffs in these cases, it

489
00:31:17,920 --> 00:31:21,280
Speaker 1: would just represent a work around for Section two thirty,

490
00:31:21,400 --> 00:31:24,920
Speaker 1: and it would essentially invalidate the protections entirely, because all

491
00:31:24,920 --> 00:31:27,600
Speaker 1: it would do is send the message of don't sue

492
00:31:28,000 --> 00:31:32,600
Speaker 1: Twitter for libel, for example, suthe them for negligence. So

493
00:31:33,600 --> 00:31:36,880
Speaker 1: that would mean that you would just have a different

494
00:31:36,880 --> 00:31:40,280
Speaker 1: pathway to go after these platforms, and Section to thirty

495
00:31:40,360 --> 00:31:42,960
Speaker 1: would be meaningless. So the courts decided that was unacceptable,

496
00:31:43,440 --> 00:31:46,720
Speaker 1: and they ruled early on that immunity from liability extended

497
00:31:46,800 --> 00:31:50,800
Speaker 1: beyond stuff like libel. In fact, some of the rulings

498
00:31:50,800 --> 00:31:54,360
Speaker 1: appeared to give online companies even more protection than Chris Cox,

499
00:31:54,440 --> 00:31:56,800
Speaker 1: one of the two original drafters of the law, had

500
00:31:56,840 --> 00:31:59,440
Speaker 1: in mind. He said, it may be that this was

501
00:31:59,480 --> 00:32:04,480
Speaker 1: applied more broadly than we had intended for malicious websites

502
00:32:04,520 --> 00:32:06,800
Speaker 1: and forums. This could mean that if you have a

503
00:32:06,840 --> 00:32:11,240
Speaker 1: particular agenda and a means to launch an online platform,

504
00:32:11,400 --> 00:32:14,480
Speaker 1: you can push your agenda even if it causes harm

505
00:32:14,560 --> 00:32:18,040
Speaker 1: to other people by giving sympathizers. You know people who

506
00:32:18,080 --> 00:32:21,200
Speaker 1: share your philosophy if you give them a place to

507
00:32:21,200 --> 00:32:24,920
Speaker 1: promote their ideology your ideology, as long as you're careful

508
00:32:24,960 --> 00:32:27,800
Speaker 1: not to do it. Yourself, because you're really just providing

509
00:32:27,800 --> 00:32:30,160
Speaker 1: a place for third parties to do it. If you

510
00:32:30,160 --> 00:32:32,320
Speaker 1: start to publish your own words, you no longer have

511
00:32:32,400 --> 00:32:35,080
Speaker 1: protection because you're not acting as a distributor for a

512
00:32:35,160 --> 00:32:39,680
Speaker 1: third party's content, and and that would be fine. So

513
00:32:39,800 --> 00:32:42,200
Speaker 1: we saw it happen a lot. We still do. And

514
00:32:42,200 --> 00:32:45,880
Speaker 1: then third, over the years, the government has steadily chipped

515
00:32:45,920 --> 00:32:50,160
Speaker 1: away bit by bit at that protective shield, with various

516
00:32:50,160 --> 00:32:55,320
Speaker 1: court cases leading judges to interpret exemptions for that immunity

517
00:32:55,560 --> 00:32:58,680
Speaker 1: to liability. And that makes platforms a little less keen

518
00:32:58,760 --> 00:33:03,280
Speaker 1: on editorializing fear of being pulled into one of those exceptions. Now,

519
00:33:03,280 --> 00:33:05,960
Speaker 1: when we come back, I'll talk a bit more about

520
00:33:06,000 --> 00:33:08,720
Speaker 1: the ways that courts have eroded Section to thirty from

521
00:33:08,760 --> 00:33:12,720
Speaker 1: its original and arguably o P status. But first, let's

522
00:33:12,760 --> 00:33:22,920
Speaker 1: take another quick break. All right, guys, you know what,

523
00:33:23,000 --> 00:33:25,400
Speaker 1: I guess it's about time we kind of jumped back

524
00:33:25,440 --> 00:33:28,120
Speaker 1: into the present. So the nineties were fun and all,

525
00:33:28,160 --> 00:33:33,440
Speaker 1: but take off the flannel, stop listening to grunge, forget

526
00:33:33,440 --> 00:33:35,520
Speaker 1: about my so called life for a minute, and let's

527
00:33:35,520 --> 00:33:37,240
Speaker 1: all get back in the time. Everyone back in the

528
00:33:37,280 --> 00:33:42,280
Speaker 1: time machine, you two, all right, I'll push the button

529
00:33:52,640 --> 00:33:56,040
Speaker 1: for the first decade of its existence. Section to thirty

530
00:33:56,120 --> 00:33:59,000
Speaker 1: was kind of like a bulletproof vest for online platforms

531
00:33:59,000 --> 00:34:01,760
Speaker 1: when it came to liability linked to user and third

532
00:34:01,800 --> 00:34:07,400
Speaker 1: party content. There are numerous incredible court cases featuring some

533
00:34:07,560 --> 00:34:12,879
Speaker 1: really sympathetic plaintiffs, you know, people who inarguably suffered hardships

534
00:34:13,000 --> 00:34:17,520
Speaker 1: because of someone sharing harmful or abuse of materials online.

535
00:34:18,400 --> 00:34:20,920
Speaker 1: And the message seemed to be that, at least in

536
00:34:21,000 --> 00:34:25,399
Speaker 1: some cases, there was no real legal recourse for these

537
00:34:25,400 --> 00:34:29,799
Speaker 1: people to seek out justice. If the perpetrator who's publishing

538
00:34:30,200 --> 00:34:35,480
Speaker 1: this harmful information is anonymous, it can be really hard

539
00:34:35,560 --> 00:34:38,080
Speaker 1: to track that person down and hold them accountable for

540
00:34:38,160 --> 00:34:42,359
Speaker 1: what they said online. There are lots of ways that

541
00:34:42,400 --> 00:34:46,120
Speaker 1: people can hide their identity, including ways to hide their

542
00:34:46,120 --> 00:34:50,200
Speaker 1: IP address, which means that in some cases it would

543
00:34:50,239 --> 00:34:53,279
Speaker 1: just be impossible to figure out who was ultimately responsible.

544
00:34:53,360 --> 00:34:57,120
Speaker 1: And Section to thirty would shield the platforms from legal action,

545
00:34:57,400 --> 00:35:00,800
Speaker 1: which meant that the victim would have no real options

546
00:35:01,320 --> 00:35:04,239
Speaker 1: and that rubbed a lot of people the wrong way. Now,

547
00:35:04,280 --> 00:35:06,560
Speaker 1: before I get into details, I do want to say

548
00:35:06,600 --> 00:35:10,360
Speaker 1: that I acknowledged this is a very tricky situation. On

549
00:35:10,400 --> 00:35:13,600
Speaker 1: the one hand, it seems unreasonable to hold a platform

550
00:35:13,680 --> 00:35:18,040
Speaker 1: accountable for something that it didn't generate. It wasn't responsible

551
00:35:18,080 --> 00:35:20,839
Speaker 1: for creating it. So if I pop onto Twitter and

552
00:35:20,920 --> 00:35:24,800
Speaker 1: I post harmful lies about you, it's not Twitter's fault

553
00:35:24,960 --> 00:35:27,920
Speaker 1: that I did that, right, It's my fault, and Twitter

554
00:35:28,200 --> 00:35:31,600
Speaker 1: should be protected from being unfairly lumped in with me

555
00:35:31,960 --> 00:35:36,640
Speaker 1: on that matter. Online platforms serve millions or even billions

556
00:35:36,680 --> 00:35:39,279
Speaker 1: of people, and there's just no way to filter every

557
00:35:39,280 --> 00:35:42,319
Speaker 1: single post from every single person to make sure that

558
00:35:42,400 --> 00:35:46,479
Speaker 1: there's nothing harmful there. But on the other hand, let's

559
00:35:46,480 --> 00:35:50,800
Speaker 1: say I post something that is demonstrably false and harmful

560
00:35:51,080 --> 00:35:54,880
Speaker 1: directed towards you, and you alert the platform I've used

561
00:35:55,040 --> 00:35:58,480
Speaker 1: to this problem. If the platform fails to act to

562
00:35:58,600 --> 00:36:01,920
Speaker 1: take down that post or perhaps even go further, maybe

563
00:36:01,960 --> 00:36:05,400
Speaker 1: ban me from using the service, then doesn't that suggest

564
00:36:05,400 --> 00:36:08,399
Speaker 1: the platform itself should be held accountable. I mean, it's

565
00:36:08,440 --> 00:36:12,680
Speaker 1: allowing a wrong to continue. Is there no responsibility to

566
00:36:12,719 --> 00:36:16,560
Speaker 1: prevent harm? And if there isn't, what makes the Internet

567
00:36:16,600 --> 00:36:20,880
Speaker 1: different from other things that law covers Because other areas

568
00:36:20,920 --> 00:36:23,400
Speaker 1: of the world that you know, in the legal world

569
00:36:23,400 --> 00:36:26,560
Speaker 1: in the United States, they don't enjoy this protection. But

570
00:36:26,640 --> 00:36:29,399
Speaker 1: it's a really complex issue, and it reminds us that

571
00:36:29,520 --> 00:36:32,440
Speaker 1: you can have a lot of things that are really important,

572
00:36:32,480 --> 00:36:35,040
Speaker 1: like freedom of speech or a right to privacy or

573
00:36:35,080 --> 00:36:38,040
Speaker 1: an expectation of security, and you can have those come

574
00:36:38,040 --> 00:36:40,960
Speaker 1: into conflict with one another, and it ultimately means that

575
00:36:41,239 --> 00:36:44,239
Speaker 1: whatever decision you make, it's not going to be satisfying

576
00:36:44,280 --> 00:36:48,440
Speaker 1: to everybody. Starting it. Around two thousand eight, courts began

577
00:36:48,520 --> 00:36:51,360
Speaker 1: to rule that Section two thirty wasn't a perfect force

578
00:36:51,440 --> 00:36:56,520
Speaker 1: field protecting online services from all liability. In California, a

579
00:36:56,560 --> 00:37:01,080
Speaker 1: pair of fair housing nonprofit organizations brought a lawsuit against

580
00:37:01,120 --> 00:37:04,680
Speaker 1: a website called roommates dot Com. They said that the

581
00:37:04,719 --> 00:37:08,560
Speaker 1: site was encouraging users to post and sort housing opportunities

582
00:37:08,880 --> 00:37:13,440
Speaker 1: in a discriminatory way, and that violated federal and state law.

583
00:37:13,920 --> 00:37:17,040
Speaker 1: It is illegal to advertise housing with a language that

584
00:37:17,080 --> 00:37:23,080
Speaker 1: indicates preference, limitation, or discrimination based on race, sex, familial status,

585
00:37:23,080 --> 00:37:25,880
Speaker 1: and that kind of thing. But roommates dot Com allowed

586
00:37:25,960 --> 00:37:29,160
Speaker 1: users to fill out fields on all that kind of stuff.

587
00:37:28,880 --> 00:37:32,960
Speaker 1: You could create a profile where you included things like

588
00:37:33,360 --> 00:37:38,000
Speaker 1: your gender, your familial you know status, your sexual orientation,

589
00:37:38,000 --> 00:37:40,200
Speaker 1: all this kind of stuff, and some people on the

590
00:37:40,200 --> 00:37:45,120
Speaker 1: site started posting discriminatory notices saying things like, you know,

591
00:37:45,239 --> 00:37:48,480
Speaker 1: essentially only white people need to apply that kind of stuff.

592
00:37:48,800 --> 00:37:52,120
Speaker 1: Terrible stuff. Now, the lawyer for roommates dot Com argued

593
00:37:52,239 --> 00:37:55,319
Speaker 1: that the site was protected under Section to thirty, but

594
00:37:55,440 --> 00:37:59,040
Speaker 1: the plaintiffs lawyer said, hang on roommates is totally setting

595
00:37:59,080 --> 00:38:02,040
Speaker 1: all this up because it has people fill in that

596
00:38:02,120 --> 00:38:05,439
Speaker 1: information in the first place. It asks people to give

597
00:38:05,480 --> 00:38:09,560
Speaker 1: that that those details. Now, the case was initially dismissed

598
00:38:09,560 --> 00:38:13,000
Speaker 1: in a lower court, but an appeals court would take

599
00:38:13,040 --> 00:38:17,000
Speaker 1: it into further consideration, and that three judge court ultimately

600
00:38:17,040 --> 00:38:21,040
Speaker 1: decided that with a very narrow focus, roommates dot Com

601
00:38:21,160 --> 00:38:26,160
Speaker 1: was liable for asking questions that were allegedly discriminatory, but

602
00:38:26,320 --> 00:38:29,720
Speaker 1: that it was not liable for the content that users

603
00:38:29,719 --> 00:38:33,759
Speaker 1: were writing in the site, like under additional comments. And

604
00:38:33,840 --> 00:38:38,000
Speaker 1: it's a fine distinction, but it marked a small weakness

605
00:38:38,040 --> 00:38:42,200
Speaker 1: in two thirties armor. Moreover, a subsequent hearing found that

606
00:38:42,320 --> 00:38:46,759
Speaker 1: a website develops content if it quote contributes materially to

607
00:38:46,800 --> 00:38:51,040
Speaker 1: the alleged illegality of the conduct end quote, which would

608
00:38:51,080 --> 00:38:53,840
Speaker 1: mean in those cases the service would no longer be

609
00:38:53,960 --> 00:38:58,040
Speaker 1: a simple publisher or distributor. It would be a developer

610
00:38:58,160 --> 00:39:01,640
Speaker 1: of content, and thus to thirty protection would not apply.

611
00:39:02,560 --> 00:39:06,680
Speaker 1: Subsequent court cases reinforce the idea that if a website

612
00:39:06,800 --> 00:39:11,680
Speaker 1: quote unquote materially contributes to the illegality of material posted

613
00:39:11,719 --> 00:39:14,960
Speaker 1: to that site by third parties, it would not or

614
00:39:15,040 --> 00:39:18,520
Speaker 1: may not qualify for Section to thirty immunity. So the

615
00:39:18,560 --> 00:39:21,880
Speaker 1: parameters of protection began to change a little bit. Should

616
00:39:21,880 --> 00:39:24,360
Speaker 1: a court find that a site had not just allowed

617
00:39:24,480 --> 00:39:27,400
Speaker 1: users to post a legal material, but to somehow be

618
00:39:27,840 --> 00:39:31,759
Speaker 1: active in that process beyond just being a publication platform,

619
00:39:32,200 --> 00:39:34,839
Speaker 1: then it could be held accountable. But while there were

620
00:39:34,840 --> 00:39:39,279
Speaker 1: new parameters, they weren't strictly defined, and courts would have

621
00:39:39,360 --> 00:39:43,200
Speaker 1: to interpret specific cases within the context of this kind

622
00:39:43,200 --> 00:39:47,640
Speaker 1: of vague notion of restrictions to immunity. A subsequent case

623
00:39:47,680 --> 00:39:52,120
Speaker 1: brought against Yahoo by a woman named Cecilia Barnes would

624
00:39:52,160 --> 00:39:57,000
Speaker 1: further complicate matters. Barnes's ex boyfriend created a fake profile

625
00:39:57,160 --> 00:40:01,759
Speaker 1: on Yahoo, claiming that the profile will longed to Cecilia,

626
00:40:01,840 --> 00:40:05,040
Speaker 1: and he included nude pictures of Barnes that he had

627
00:40:05,080 --> 00:40:10,279
Speaker 1: taken without her consent, which is truly horrifying. And then

628
00:40:10,320 --> 00:40:14,760
Speaker 1: he also included her work contact information and before long

629
00:40:15,480 --> 00:40:18,319
Speaker 1: men were showing up and trying to contact Cecilia, and

630
00:40:18,360 --> 00:40:19,960
Speaker 1: that must have come as a real shock to her.

631
00:40:20,000 --> 00:40:23,640
Speaker 1: I can't imagine how disruptive that had to have been

632
00:40:23,680 --> 00:40:27,360
Speaker 1: to her life. Cecilia found a link on Yahoo that

633
00:40:27,480 --> 00:40:31,160
Speaker 1: explained what people should do in the event that they

634
00:40:31,160 --> 00:40:35,400
Speaker 1: wanted to claim a profile that purported to represent them

635
00:40:35,640 --> 00:40:38,360
Speaker 1: was in fact a fake, and it involves sending an

636
00:40:38,400 --> 00:40:41,880
Speaker 1: assigned statement and a copy of their ID to Yahoo

637
00:40:42,239 --> 00:40:47,319
Speaker 1: via snail mail. So not exactly the fastest or most

638
00:40:47,360 --> 00:40:50,600
Speaker 1: streamlined of processes, but Barnes went ahead and did it,

639
00:40:51,560 --> 00:40:54,440
Speaker 1: but the Yahoo profile stayed up. Barnes had heard nothing

640
00:40:54,480 --> 00:40:57,880
Speaker 1: back from Yahoo, so she tried it again a couple

641
00:40:57,920 --> 00:41:01,719
Speaker 1: of times and still didn't receive any reply. Then she

642
00:41:01,840 --> 00:41:05,320
Speaker 1: was scheduled to give an interview on local television and

643
00:41:05,840 --> 00:41:09,800
Speaker 1: talk about her experience, when miraculously, a Yahoo representative actually

644
00:41:09,800 --> 00:41:12,880
Speaker 1: reached out to her. Now that representative was the director

645
00:41:12,920 --> 00:41:17,200
Speaker 1: of communications at Yahoo, and the director of communications promised

646
00:41:17,239 --> 00:41:22,960
Speaker 1: Cecilia that she would take a fact request from Cecilia

647
00:41:23,160 --> 00:41:26,920
Speaker 1: over to the proper division by hand and make certain

648
00:41:26,960 --> 00:41:30,520
Speaker 1: that the profile was removed. And the profile was not

649
00:41:30,680 --> 00:41:33,640
Speaker 1: removed it stayed up for another couple of months. So

650
00:41:34,040 --> 00:41:37,000
Speaker 1: Barnes goes and sues Yahoo. Now I'm going to skip

651
00:41:37,040 --> 00:41:40,440
Speaker 1: most of the court process, But ultimately the case hinged

652
00:41:40,480 --> 00:41:44,040
Speaker 1: on the fact that a Yahoo representative had made a

653
00:41:44,120 --> 00:41:48,879
Speaker 1: promise to do something but then didn't do it, and

654
00:41:49,000 --> 00:41:52,840
Speaker 1: that the court found was outside the protections of section

655
00:41:52,920 --> 00:41:57,359
Speaker 1: two thirty. Ironically, if Yahoo had not reached out at all,

656
00:41:57,440 --> 00:41:59,640
Speaker 1: if the company had just allowed things to keep on

657
00:41:59,680 --> 00:42:01,839
Speaker 1: going as they were going with the fake profile up

658
00:42:01,880 --> 00:42:05,880
Speaker 1: and they just never replied to Barnes, Section to thirty

659
00:42:05,920 --> 00:42:09,000
Speaker 1: would still have applied to Yahoo. It was only because

660
00:42:09,239 --> 00:42:12,520
Speaker 1: the representative had promised to do something and did not

661
00:42:12,680 --> 00:42:16,480
Speaker 1: follow through that the company was found liable. Now, if

662
00:42:16,560 --> 00:42:19,839
Speaker 1: y'all who had actually pulled down that profile, there also

663
00:42:19,880 --> 00:42:21,480
Speaker 1: would have been nothing to talk about here. So if

664
00:42:21,520 --> 00:42:23,520
Speaker 1: they had done what they said they were going to do,

665
00:42:23,880 --> 00:42:26,560
Speaker 1: there also wouldn't have been a problem. So literally, Yah,

666
00:42:26,560 --> 00:42:29,080
Speaker 1: who went down the one pathway where there still would

667
00:42:29,120 --> 00:42:33,480
Speaker 1: be liability. Barnes actually ultimately withdrew her lawsuit before it

668
00:42:33,480 --> 00:42:36,440
Speaker 1: would go through the entire court process, but that earlier

669
00:42:36,560 --> 00:42:41,320
Speaker 1: finding in court would hold and it would oddly discourage

670
00:42:41,360 --> 00:42:45,240
Speaker 1: platforms from taking a more active role in moderation, because

671
00:42:45,520 --> 00:42:49,120
Speaker 1: if a site did promise to remove something and then

672
00:42:49,160 --> 00:42:51,960
Speaker 1: they didn't do it in a timely enough manner, they

673
00:42:52,000 --> 00:42:55,360
Speaker 1: could be held liable for that because they didn't carry

674
00:42:55,360 --> 00:42:58,200
Speaker 1: through on a promise. If they did nothing at all,

675
00:42:58,400 --> 00:43:01,560
Speaker 1: they wouldn't be liable. They beat protected under section to thirty.

676
00:43:01,640 --> 00:43:04,680
Speaker 1: And I don't know about you, but doing nothing tends

677
00:43:04,719 --> 00:43:07,520
Speaker 1: to be easier than doing something. I mean, it's even

678
00:43:07,560 --> 00:43:10,600
Speaker 1: easier than promising to do something but not doing it.

679
00:43:10,719 --> 00:43:13,160
Speaker 1: Just not doing anything at all, it's still the easiest

680
00:43:13,160 --> 00:43:15,960
Speaker 1: thing to do. So in a way, these rulings that

681
00:43:16,080 --> 00:43:20,160
Speaker 1: found limitations to two thirty reinforce the behaviors of companies

682
00:43:20,200 --> 00:43:23,799
Speaker 1: that were reluctant to moderate the content on their platforms.

683
00:43:24,280 --> 00:43:28,280
Speaker 1: More recently, cases have been brought to light that section

684
00:43:28,320 --> 00:43:31,680
Speaker 1: to can play a role in suppressing voices of marginalized

685
00:43:31,680 --> 00:43:34,840
Speaker 1: and vulnerable population. So, in other words, a piece of

686
00:43:34,920 --> 00:43:39,040
Speaker 1: legislation tied to the spirit of free speech could in

687
00:43:39,120 --> 00:43:43,400
Speaker 1: itself be suppressing the free speech of others. For example,

688
00:43:43,640 --> 00:43:48,000
Speaker 1: while there are plenty of cases of online harassment campaigns

689
00:43:48,040 --> 00:43:52,280
Speaker 1: for all sorts of people, women represent a disproportionate number

690
00:43:52,640 --> 00:43:57,800
Speaker 1: of victims of online harassment. Women, particularly young women, encounter

691
00:43:57,920 --> 00:44:02,520
Speaker 1: sexualized online abuse are more frequently than men do, and

692
00:44:02,600 --> 00:44:05,560
Speaker 1: so there is a real issue of Section to thirty

693
00:44:05,600 --> 00:44:10,919
Speaker 1: providing immunity to platforms that house communities who are perpetuating

694
00:44:10,960 --> 00:44:13,880
Speaker 1: an abusive set of behaviors, which is not great and

695
00:44:13,960 --> 00:44:17,000
Speaker 1: other vulnerable populations face this too. We see it in

696
00:44:17,080 --> 00:44:22,239
Speaker 1: terms of race and sexual orientation, religious affiliations, political affiliations,

697
00:44:22,280 --> 00:44:25,600
Speaker 1: and more. And that harassment can have the effect of

698
00:44:25,719 --> 00:44:29,239
Speaker 1: silencing the people who are being harassed, So it is

699
00:44:29,280 --> 00:44:34,080
Speaker 1: a form of suppression of the freedom of speech. So

700
00:44:34,440 --> 00:44:37,719
Speaker 1: courts have whittled back a bit of the Section to

701
00:44:37,920 --> 00:44:40,880
Speaker 1: thirty protection and we have seen a bit more of

702
00:44:40,920 --> 00:44:45,799
Speaker 1: a move towards moderating content on platforms. However, this is

703
00:44:45,840 --> 00:44:49,279
Speaker 1: not out of a fear of legal liability. Instead, it's

704
00:44:49,320 --> 00:44:53,680
Speaker 1: because of consumer demand. We've seen platforms like Facebook and

705
00:44:53,719 --> 00:44:58,279
Speaker 1: YouTube and Twitter get more involved in content moderation, not

706
00:44:58,400 --> 00:45:02,680
Speaker 1: because the government was, you know, not going to provide

707
00:45:02,719 --> 00:45:05,879
Speaker 1: them immunity. The immunity, the illegal immunity was still there.

708
00:45:06,480 --> 00:45:09,719
Speaker 1: It's because users were demanding it and a failure to

709
00:45:10,040 --> 00:45:14,400
Speaker 1: act could have resulted in users dumping the services. And

710
00:45:14,440 --> 00:45:17,640
Speaker 1: these companies could still operate with an incredible amount of

711
00:45:17,760 --> 00:45:20,759
Speaker 1: legal protection, but that doesn't save them from the consequences

712
00:45:20,760 --> 00:45:25,200
Speaker 1: of people abandoning their their business. They need those customers.

713
00:45:25,560 --> 00:45:30,280
Speaker 1: And then in Congress passed a bill that amended section

714
00:45:30,560 --> 00:45:34,640
Speaker 1: to thirty. It removed protections for any site that knowingly

715
00:45:34,719 --> 00:45:38,960
Speaker 1: contributes to or supports sex trafficking. While the goal of

716
00:45:39,000 --> 00:45:42,319
Speaker 1: eliminating the support of sex trafficking is a really good one,

717
00:45:42,320 --> 00:45:46,560
Speaker 1: it's one we absolutely need to focus on. The actual

718
00:45:46,640 --> 00:45:50,920
Speaker 1: bill itself would receive some criticism, not for its purpose

719
00:45:51,000 --> 00:45:53,960
Speaker 1: but in its creation, like in its wording. So law

720
00:45:54,000 --> 00:45:58,439
Speaker 1: professor Eric Goldman wrote that quote As a result, liability

721
00:45:58,520 --> 00:46:02,600
Speaker 1: based on knowledge pushes internet companies to adopt one of

722
00:46:02,760 --> 00:46:08,200
Speaker 1: two extreme positions moderate all content perfectly and accept the

723
00:46:08,280 --> 00:46:12,720
Speaker 1: legal risk for any errors, or don't moderate content at all,

724
00:46:12,760 --> 00:46:16,719
Speaker 1: as a way of negating knowledge. So when you think

725
00:46:16,760 --> 00:46:20,399
Speaker 1: of it that way, if if the law says if

726
00:46:20,440 --> 00:46:23,839
Speaker 1: you know that this is happening, you're obligated to stop it,

727
00:46:23,960 --> 00:46:26,880
Speaker 1: or if not, you're going to be held liable, then

728
00:46:28,040 --> 00:46:31,040
Speaker 1: that also opens up the opportunity to quote unquote not

729
00:46:31,280 --> 00:46:35,120
Speaker 1: know it is happening. It creates an incentive to not

730
00:46:35,320 --> 00:46:39,560
Speaker 1: get involved, which is like the earlier problems that I

731
00:46:39,600 --> 00:46:42,759
Speaker 1: mentioned in this episode. But you know more, but any

732
00:46:42,800 --> 00:46:45,440
Speaker 1: system designed by humans is going to be imperfect, right,

733
00:46:45,840 --> 00:46:48,600
Speaker 1: And that brings us up to this year where we're

734
00:46:48,600 --> 00:46:51,840
Speaker 1: seeing various politicians and others calling for an end or

735
00:46:51,880 --> 00:46:56,160
Speaker 1: at least an amendment to Section to thirty. President Trump

736
00:46:56,360 --> 00:47:00,080
Speaker 1: appears angry that Twitter, for example, has flagged many of

737
00:47:00,120 --> 00:47:03,799
Speaker 1: his tweets as containing misleading information. He has gone so

738
00:47:03,840 --> 00:47:06,040
Speaker 1: far as to call Section to thirty a threat to

739
00:47:06,120 --> 00:47:09,919
Speaker 1: national security, which echoes something that was actually argued back

740
00:47:09,920 --> 00:47:13,279
Speaker 1: in the nineteen seventies that related to the publication of

741
00:47:13,320 --> 00:47:16,919
Speaker 1: the Pentagon papers. Uh, that tactic didn't work then, and

742
00:47:16,960 --> 00:47:19,480
Speaker 1: I don't think it's really gonna work now. And it

743
00:47:19,520 --> 00:47:23,880
Speaker 1: doesn't help that the root of the problem, which is misinformation,

744
00:47:24,280 --> 00:47:28,600
Speaker 1: is really to blame here. There's also and a misinterpretation

745
00:47:28,640 --> 00:47:31,120
Speaker 1: of Section to thirty going on here because Trump has

746
00:47:31,200 --> 00:47:35,279
Speaker 1: argued that platforms must be neutral in their approach, which

747
00:47:35,400 --> 00:47:38,520
Speaker 1: just isn't true. It's not part of the original law

748
00:47:38,600 --> 00:47:41,600
Speaker 1: at all, Nor is that an interpretation that's been supported

749
00:47:41,640 --> 00:47:45,160
Speaker 1: in the numerous court cases that have shaped the practice

750
00:47:45,280 --> 00:47:48,360
Speaker 1: of Section two thirty. Nowhere does it state that a

751
00:47:48,400 --> 00:47:50,960
Speaker 1: platform has to be neutral. In fact, in some of

752
00:47:51,000 --> 00:47:54,520
Speaker 1: the most famous cases in which Section to thirty protections

753
00:47:54,520 --> 00:47:59,000
Speaker 1: were upheld, it involved content platforms that were most assuredly

754
00:47:59,440 --> 00:48:02,160
Speaker 1: not new neutral, and in at least a few cases,

755
00:48:02,160 --> 00:48:06,400
Speaker 1: they were arguably downright maliciously biased. Now last year, in

756
00:48:06,440 --> 00:48:11,200
Speaker 1: twenty nineteen, Senator Josh Holly, a Republican from Missouri, introduced

757
00:48:11,280 --> 00:48:14,680
Speaker 1: legislation that would require any online service with more than

758
00:48:14,760 --> 00:48:19,359
Speaker 1: thirty million US users or three million users globally, or

759
00:48:19,360 --> 00:48:21,800
Speaker 1: with a revenue of at least five hundred million dollars

760
00:48:22,080 --> 00:48:25,759
Speaker 1: would be required to take a politically neutral stance when

761
00:48:25,760 --> 00:48:29,400
Speaker 1: it came to moderating content in order to qualify for

762
00:48:29,520 --> 00:48:33,279
Speaker 1: Section to thirty protection. So the implication here is that

763
00:48:33,360 --> 00:48:37,560
Speaker 1: the platforms have a bias against a particular political philosophy.

764
00:48:37,600 --> 00:48:42,760
Speaker 1: In this case, he's arguing that they are biased against conservatives,

765
00:48:43,000 --> 00:48:47,719
Speaker 1: and therefore when these platforms moderate content, they tend to

766
00:48:47,760 --> 00:48:52,319
Speaker 1: do so disproportionately to the detriment of conservative voices. Not

767
00:48:52,480 --> 00:48:55,719
Speaker 1: many people are taking this particular proposal seriously because it

768
00:48:55,719 --> 00:48:59,000
Speaker 1: would probably get torn to shreds under First Amendment arguments

769
00:48:59,000 --> 00:49:01,600
Speaker 1: in court. It wouldn't hold up to scrutiny at all.

770
00:49:02,280 --> 00:49:05,439
Speaker 1: Other proposals aimed to follow the path of the teen

771
00:49:05,480 --> 00:49:09,000
Speaker 1: Amendment that covered sex trafficking, with the idea that you

772
00:49:09,040 --> 00:49:13,000
Speaker 1: could do the same thing with other exceptions to the

773
00:49:13,120 --> 00:49:16,160
Speaker 1: section to thirty protection. But one potential problem with that

774
00:49:16,200 --> 00:49:18,759
Speaker 1: approach is that it creates a real mess as far

775
00:49:18,800 --> 00:49:22,680
Speaker 1: as what to thirty does and doesn't apply to, and

776
00:49:22,719 --> 00:49:25,359
Speaker 1: it could potentially reach a point where it's harder to

777
00:49:25,400 --> 00:49:30,480
Speaker 1: tell under what conditions platforms have protection versus the conditions

778
00:49:30,520 --> 00:49:32,880
Speaker 1: where they don't, and it would place a very heavy

779
00:49:32,920 --> 00:49:36,840
Speaker 1: burden on the court system to determine through various lawsuits

780
00:49:37,160 --> 00:49:40,480
Speaker 1: if the defendants, that being the platforms, had met the

781
00:49:40,600 --> 00:49:43,440
Speaker 1: legal burden to qualify for two thirty protection. So, in

782
00:49:43,440 --> 00:49:47,520
Speaker 1: other words, that's not ideal. Either. Then there's the possibility

783
00:49:47,800 --> 00:49:51,520
Speaker 1: that Congress will just repeal TO thirty totally, which would

784
00:49:51,640 --> 00:49:54,080
Speaker 1: have been terrifying to companies back in the nineties when

785
00:49:54,080 --> 00:49:57,800
Speaker 1: they were still trying to establish themselves. But frankly, to

786
00:49:58,000 --> 00:50:02,000
Speaker 1: thirty protection is an im American thing. In other places

787
00:50:02,040 --> 00:50:06,000
Speaker 1: like Europe, these broad protections don't exist in that form,

788
00:50:06,040 --> 00:50:10,320
Speaker 1: and yet social networking platforms forums that kind of stuff.

789
00:50:10,360 --> 00:50:13,000
Speaker 1: They still operate in those places now, granted they have

790
00:50:13,040 --> 00:50:15,600
Speaker 1: to do so while following a more strict set of rules,

791
00:50:16,040 --> 00:50:18,479
Speaker 1: and it's a pain in the butt. But we should

792
00:50:18,520 --> 00:50:21,719
Speaker 1: also remember that the big tech companies that this would

793
00:50:21,719 --> 00:50:26,120
Speaker 1: affect are also heavily involved in mobbying efforts in politics.

794
00:50:26,160 --> 00:50:28,719
Speaker 1: So how likely is it that we're going to see

795
00:50:28,800 --> 00:50:32,799
Speaker 1: section to thirty completely repealed? I honestly don't know, but

796
00:50:32,840 --> 00:50:35,400
Speaker 1: I think it would be a steep, uphill battle because

797
00:50:35,400 --> 00:50:37,640
Speaker 1: you've got a lot of money from these tech companies

798
00:50:38,040 --> 00:50:41,680
Speaker 1: influencing a lot of politicians. According to a great piece

799
00:50:41,680 --> 00:50:45,120
Speaker 1: in Ours Technica titled Section to thirty, the Internet Law

800
00:50:45,200 --> 00:50:48,800
Speaker 1: Politicians Love to hate, explained a law professor at the

801
00:50:48,880 --> 00:50:53,440
Speaker 1: University of Maryland named Danielle Citron, and researcher Ben Wits

802
00:50:53,600 --> 00:50:57,239
Speaker 1: from the Brookings Institution suggests that two thirty should be

803
00:50:57,239 --> 00:51:00,560
Speaker 1: amended so that the platforms receive immunity only if they

804
00:51:00,640 --> 00:51:05,080
Speaker 1: ensure quote reasonable steps to prevent or address unlawful uses

805
00:51:05,160 --> 00:51:07,960
Speaker 1: of its services end quote, leaving a lot of that

806
00:51:08,040 --> 00:51:11,280
Speaker 1: language up for interpretation in the courts. So the idea

807
00:51:11,360 --> 00:51:14,520
Speaker 1: being that you should be fine, you should be immune

808
00:51:14,640 --> 00:51:19,040
Speaker 1: as long as you can prove that whenever bad stuff

809
00:51:19,080 --> 00:51:21,200
Speaker 1: is happening on your platform, you're doing your best to

810
00:51:21,560 --> 00:51:27,160
Speaker 1: stop it. Um So, in cases where a platform was notified, hey,

811
00:51:27,760 --> 00:51:31,440
Speaker 1: some other user has published my private information on your

812
00:51:31,440 --> 00:51:34,480
Speaker 1: platform without my permission. Take it down, they would actually

813
00:51:34,520 --> 00:51:38,040
Speaker 1: go and take it down right now. Section to applies

814
00:51:38,080 --> 00:51:40,560
Speaker 1: to those companies, whether they take anything down or not,

815
00:51:41,120 --> 00:51:44,920
Speaker 1: and that has led to some pretty tragic circumstances in

816
00:51:44,960 --> 00:51:49,080
Speaker 1: the lives of people who have been affected by malicious

817
00:51:49,200 --> 00:51:53,760
Speaker 1: users of various services out there. Now, as I said,

818
00:51:54,360 --> 00:51:58,720
Speaker 1: this is a complicated subject. There is a real need

819
00:51:58,800 --> 00:52:03,640
Speaker 1: to protect freedom of speech because without it, if companies

820
00:52:03,680 --> 00:52:06,520
Speaker 1: can be held liable for everything that users right, we're

821
00:52:06,520 --> 00:52:09,799
Speaker 1: gonna see a disappearance of all of those things that

822
00:52:09,840 --> 00:52:12,839
Speaker 1: we take for granted. Now, I mean, social networks would

823
00:52:12,840 --> 00:52:15,720
Speaker 1: be totally different. We wouldn't be able to leave reviews

824
00:52:15,760 --> 00:52:19,120
Speaker 1: because any company that didn't like a review could end

825
00:52:19,200 --> 00:52:24,479
Speaker 1: up suing the marketplace for hosting that review. It would

826
00:52:24,480 --> 00:52:27,880
Speaker 1: be a huge mess. So we do need something there.

827
00:52:27,920 --> 00:52:32,120
Speaker 1: At the same time, we have to address that the

828
00:52:32,239 --> 00:52:37,360
Speaker 1: rules as they state right now do disproportionately affect vulnerable

829
00:52:37,360 --> 00:52:40,799
Speaker 1: populations in a negative way. And we need to fix that,

830
00:52:41,920 --> 00:52:44,640
Speaker 1: and we've got to figure out how to give more

831
00:52:44,680 --> 00:52:48,880
Speaker 1: incentives for platforms to take an active role in moderating

832
00:52:48,920 --> 00:52:53,160
Speaker 1: the content that appear on those platforms. And to me,

833
00:52:53,239 --> 00:52:57,000
Speaker 1: that's that's a tough tough nut to crack because there's

834
00:52:57,040 --> 00:52:59,680
Speaker 1: not a whole lot of financial incentive to do it unless,

835
00:53:00,080 --> 00:53:03,400
Speaker 1: as we've seen in there's a thread of people leaving

836
00:53:03,640 --> 00:53:08,120
Speaker 1: those platforms. Otherwise there's more of a financial incentive to

837
00:53:08,200 --> 00:53:11,600
Speaker 1: keep it up there. So it's a complicated situation. But

838
00:53:11,719 --> 00:53:14,840
Speaker 1: I hope that this helps you have an understanding of

839
00:53:14,880 --> 00:53:17,440
Speaker 1: what section to thirty is, what it was intended to do,

840
00:53:17,560 --> 00:53:20,719
Speaker 1: and what it actually has done, because, as we know,

841
00:53:21,600 --> 00:53:26,120
Speaker 1: often we will create a construct planning for it to

842
00:53:26,160 --> 00:53:29,040
Speaker 1: do one thing, only to see it go off and

843
00:53:29,160 --> 00:53:32,160
Speaker 1: rampage through the village and you know, throw a little

844
00:53:32,160 --> 00:53:35,120
Speaker 1: girl in the river. That's a Frankenstein reference, although I

845
00:53:35,120 --> 00:53:36,560
Speaker 1: think it might have been a little boy in the book.

846
00:53:36,600 --> 00:53:38,880
Speaker 1: I don't remember. I haven't writen a long time. Anyway.

847
00:53:38,920 --> 00:53:42,600
Speaker 1: That wraps up this discussion of section to thirty on

848
00:53:42,680 --> 00:53:45,719
Speaker 1: tech stuff. Hope you guys learn something. I hope you

849
00:53:45,800 --> 00:53:48,040
Speaker 1: have heard my dog shaking his head in the background.

850
00:53:48,400 --> 00:53:51,560
Speaker 1: If you have any suggestions for future topics of tech stuff,

851
00:53:51,600 --> 00:53:54,160
Speaker 1: reach out to me. You can do so on Twitter,

852
00:53:54,560 --> 00:53:58,640
Speaker 1: where unless they start moderating your comments, I'll see it

853
00:53:59,120 --> 00:54:02,320
Speaker 1: and they handle for that is text stuff H s W.

854
00:54:02,920 --> 00:54:11,000
Speaker 1: I'll talk to you again really soon. Y. Text Stuff

855
00:54:11,080 --> 00:54:14,200
Speaker 1: is an I Heart Radio production. For more podcasts from

856
00:54:14,239 --> 00:54:18,040
Speaker 1: I Heart Radio, visit the I Heart Radio app, Apple Podcasts,

857
00:54:18,160 --> 00:54:20,160
Speaker 1: or wherever you listen to your favorite shows.