Arthur Chu, noted for being able to frame things in the form of a question and for being easily agitated, has launched very silly broadside against one of the most important American laws about the internet: Section 230 of the Communications Decency Act of 1996. Chu invokes Reagan, asking President Obama to "tear down this shield." He should have looked elsewhere in Reagan's oeuvre: "facts are stubborn things."
The core of Section 230 is simple: it says that a computer service provider can't be treated as the publisher or speaker of information provided by someone else. When you go on Facebook and say your neighbor strangles squirrels, your neighbor can sue you (assuming it's false) but not Facebook. I'm responsible for what I write on Popehat, but not for what you pack of gibbering malcontents puke up onto the comments. This doesn't protect sites that host stolen intellectual property — the Digital Millennium Copyright Act covers that. But it means that Facebook, and Twitter, and anyone who runs a blog or a forum or a site with comments, can't be sued over what visitors say there. The Electronic Frontier Foundation does not exaggerate when it calls Section 230 the most important law protecting internet speech.
Chu objects to this state of affairs because it makes it difficult to shut down speech he doesn't like. Some of the stuff he doesn't like — SWATTing, true threats, and genuine harassment — would be shunned by any decent person, and the perpetrators ought to face consequences. But Chu isn't focused on them facing consequences directly. He wants to be able to punish any site on which they post. He wants people to be able to sue Facebook, or Twitter, or any web site on the internet based on what visitors post there. Moreover, if you read his angry rant you may conclude, as I did, that he opposes more than just unprotected speech.
Chu airily waves away concerns that ditching Section 230 will make censorship easier. We have just the institution to sort the good claims from the bad, he says: lawyers and courts.
We have, here in the United States, a system by which wronged parties can seek redress from those who wronged them, and those who willfully enabled that wrong, without proactive control by government bureaucrats. It’s one that even ardent libertarians imagine as being part of how their ideal “small government” would work. And it’s a highly American tradition: one that’s been identified as central to American culture since the days of Alexis de Tocqueville.
I’m talking, of course, about lawsuits. Civil litigation. Bringing in the lawyers.
Yes, by all means, bring on the lawyers. Speaking as one of them — in fact, one who handles the sort of litigation at issue here — let me explain why this is stick-your-hand-in-the-blender naive.
The court system is broken, perhaps irretrievably so. Justice may not depend entirely on how much money you have, but that is probably the most powerful factor. A lawsuit — even a frivolous one — can be utterly financially ruinous, not to mention terrifying, stressful, and health-threatening. What do I mean by financially ruinous? I mean if you are lucky as you can possibly be and hire a good lawyer who gets the suit dismissed permanently immediately, it will cost many thousands, possibly tens of thousands. If you're stuck in the suit, count on tens or hundreds of thousands.
The suggestion that this system will ease the chaos that would result from the loss of Section 230 is nothing short of lunacy.
Let's take a look at some of the stories Popehat has covered so you can see how Arthur Chu's proposal would have changed the result. While you read these stories, evaluate Chu's central thesis — that what he is doing will protect the weak, the abused.
And there are so many more. Arthur Chu angrily and oddly tries to portray Section 230 as protecting bigoted white men at the expense of women and minorities, but that's nonsense. Section 230 protects every one of us with a blog or web site directly. It also protects everyone who uses the internet indirectly, because it makes user-input websites feasible.
Section 230 doesn't keep sites from being sued for visitor comment ever. There are still frivolous suits ignoring the law. What Section 230 does is deter most baseless lawsuits against the site, and offer a quick-and-painless-as-possible way out of the those frivolous lawsuits that get filed. With Section 230, if someone sues you for visitor comments, you're funding a motion to dismiss. Without it, you're funding an entire lawsuit defense.
How would getting rid of Section 230 impact the internet? Let's consider:
1. Every single web site out there would have to monitor every single visitor comment or forum post or Tweet or Facebook update — or face liability if the item is actionable. Unless you're running a blog that gets a couple of comments per day, it's impossible to do that, practically. Also, the site doesn't have the knowledge to evaluate whether the statement is actionable. If I post "Joe Blow ran over my cat" on your blog, do you need to investigate before you approve the comment and publish it? Also, are you a lawyer? How are you going to evaluate what visitor comments are potentially actionable? If you're a millionaire you could hire lawyers to do it, but that's an expensive hobby. Hope you're up to speed on the distinction between fact and opinion, parody and defamation, criticism and harassment, and so forth. Maybe the best thing would be never to approve a comment that could be offensive to anyone ever. Good thing modern Americans have such thick skins!
2. Sites will take down visitor comment when someone demands it, because it's too expensive not to. Result: it will become easy to get any content mentioning you, or your actions, or your business taken down. Yelp? Dead as a doornail. Any site allowing users to say anything remotely critical about identifiable people? Unusable. Would Arthur Chu like to call out particular named harassers and talk about them? He's going to need to spraypaint it on a big rock, because at the first complaint his platforms are going to take it down.
3. Arthur Chu seems to think that removing Section 230 will help end online harassment, because forums and sites and blogs will take down nasty things said about people he supports. Maybe. But does Arthur think that harassers won't just as quickly use this new tool he's kindly given them? Does Arthur have a blog? If he does, folks can use anonymous proxies to post mean and nasty criticism on that blog against, say, me — and then I can rush in and sue Arthur. "But I didn't post it! It wasn't up that long! How could I know it was false? It's not really actionable harassment, is it?" Great arguments Arthur. You've got a real shot with those at the summary judgment hearing 18 months and $150,000 from now. Do you really think, Arthur, that the scumbags who threaten and harass and abuse and SWATT people will scruple for a moment about abusing your new less restrictive legal system to harass women and minorities for their online expression? Then you're a damned fool.
What's the result? Web platforms that take down content the minute anyone demands it. The death of any platforms discussing inherently controversial and anger-provoking things. And do you think people abuse complaint systems to shut up their enemies now? Just you wait.
And the flood of lawsuits! Oh, the lawsuits. See, lawsuits are about leveraging the expense and brokenness of the system to shake money out of people. Even if you figure out who HurrHurrFeminitzSuck on Twitter is, he's probably a dude living out of a storage locker. No money to be gained suing him, especially if his comment is close to the line between defamation and non-defamation. But if you can sue Twitter, too, when he talks? Deep pockets ahoy. Now it makes sense to sue, because even if you have a shitty case on the merits, Twitter may settle for a few thousand bucks to avoid the cost of protracted litigation. There are lots of idle lawyers out there, friend. Do you have a house? If so, you better not have comments on your blog.
Should threats and harassment and abuse be addressed? Absolutely. Convince private companies like Twitter and Facebook to offer better tools, and to expel bad actors. Vote with your feet from one platform to others that handle abuse better. Work together to track and whenever possible stomp the bad actors.
But eliminate Section 230 because you think the legal system is made of rainbows and children's laughter? Ridiculous.
Internet harassment and free speech are serious issues, but Arthur Chu is not a serious person.