Trump tried to gut Section 230 and failed. Now, Democrats are trying their hand at gutting the law through the SAFE TECH Act.
It’s become something of a broken record at this point for myself. I offer some predictions of what could happen earlier on in a given debate. Later on, our predictions wind up coming true. It’s always been a weird uncanny knack of mine. Famous examples include accurately predicting the downfall of Oink.CD and accurately predicting that the Harper Conservative Party of Canada would be just as bad for copyright and privacy as the Martin Liberal government. A lot of people railed against me for both predictions, but when both came true, the anger got, well, redirected away from myself – much to my relief.
Back in January, we offered our thoughts on what the Joe Biden presidency could mean for digital rights. In that report, we offered the following predictions: Biden would work to restore network neutrality. The presidency would also mean Section 230 is under threat still. Additionally, the war on encryption could continue. Also, the battle over the Felony Streaming Bill and the CASE Act could very easily heat up even though both pieces of legislation passed through the NDAA.
The first prediction started coming true pretty early on. Biden later picked Jessica Rosenwworcel as interim chairwoman for the FCC. This signals that network neutrality is already on track to being re-instated.
Now, a second prediction is coming true. Stunningly, we even got the order right as well on top of it all. Democrats are moving quickly with their attempt to gut Section 230. It is all happening through the legislation known as the SAFE TECH Act. The legislation itself is said to change the core language of the law. From TechCrunch:
First, it would fundamentally alter the core language of Section 230 — and given how concise that snippet of language is to begin with, any change is a big change. Under the new language, Section 230 would no longer offer protections in situations where payments are involved.
Here’s the current version:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information speech provided by another information content provider.
And here are the changes the SAFE TECH Act would make:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any speech provided by another information content provider, except to the extent the provider or user has accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech.
(B) (c)(1)(A) shall be an affirmative defense to a claim alleging that an interactive computer service provider is a publisher or speaker with respect to speech provided by another information content provider that an interactive computer service provider has a burden of proving by a preponderance of the evidence.
The short of it is this: if you make any money of any kind, Section 230 does not apply to you. A question you might have is, who does this apply to? Well, if you are a journalist working for a website, then Section 230 doesn’t apply. If you are a website owner who makes money through advertising, then Section 230 doesn’t apply to you. Another scenario is if you accept donations for your work or service, then Section 230 doesn’t apply. A better question might be: who would still fall under Section 230 protections at that point? At this point, we actually do not know. The article contains comments further down:
“Unfortunately, as written, it would devastate every part of the open internet, and cause massive collateral damage to online speech,” Wyden told TechCrunch, likening the bill to a full repeal of the law with added confusion from a cluster of new exceptions.
“Creating liability for all commercial relationships would cause web hosts, cloud storage providers and even paid email services to purge their networks of any controversial speech,” Wyden said.
Fight for the Future Director Evan Greer echoed the sentiment that the bill is well intentioned but shared the same concerns. “…Unfortunately this bill, as written, would have enormous unintended consequences for human rights and freedom of expression,” Greer said.
“It creates a huge carveout in Section 230 that impacts not only advertising but essentially all paid services, such as web hosting and [content delivery networks], as well as small services like Patreon, Bandcamp, and Etsy.”
Mike Masnick of Techdirt pretty much echos this sentiment:
The most devious and nefarious part of this is that the bill effectively wipes out Section 230 protections for the entire internet while pretending it’s just a minor change. This bill is about as close to a full repeal of Section 230 as you can get realistically. In the press release about the bill, Warner claims that it’s just a tweak to 230 because “these changes to Section 230 do not guarantee that platforms will be held liable in all, or even most, cases,” but that would also be true with repeal. Because most things that people want to blame on internet websites are not actually violations of the law. And, assuming a form of distributor liability is what the courts decide on, that would mean websites wouldn’t be liable for most things on their site anyway — but would result in long and costly legal battles before they could prove that.
And this bill guarantees the same exact thing. The biggest, most consequential change, is that it takes the famous “26 words,” which are Section (c)(1) of the current law, removes the protections entirely if money exchanges hands, and then changes it from an immunity to merely “an affirmative defense.” That may not seem like much, but it basically wipes out all of the actual benefits of 230.
Saying that you don’t get (c)(1) if money exchanges hands, basically wipes out Section 230 for many, many services. All web hosting would no longer be protected by Section 230. If, as many people have been demanding, social media offers up paid options (say, to remove ads), doing so would remove their 230 protections. Incredibly, this bill is coming from the same people who have been saying that Facebook and Twitter should offer a “paid version” without ads or tracking — but, under this bill, if they do that, they’d lose 230! Incredibly, under this bill, the two cases that inspired Section 230 — the CompuServe case and the Prodigy case — would not be eligible for 230 protections, because both were paid services!
The switch from (c)(1) being an immunity to being “an affirmative defense” in which the website “has a burden of proving by a preponderance of the evidence” basically erases the key procedural benefits of Section 230 — which is that it gets cases tossed right up front. This gets somewhat deep in the weeds of civil procedure, but having (c)(1) as an immunity allows companies to file a relatively straightforward motion to dismiss upfront, without having to do a lot of expensive legal work, and argue that, because of 230, there is no legitimate claim in the complaint, even if everything in that complaint is accurate. This is the key benefit of 230 in protecting websites.
But by making it an affirmative defense, which the website has to prove by a preponderance of evidence, you’ve just made everything a lot more expensive and it will take a lot longer to deal with. Not only are you going to have to pay a lot of expensive lawyers a lot more money to make a preponderance of the evidence claim, many courts find that such determinations are issues of fact, not law, meaning that they need to go to a jury. If a case goes to trial and has a jury, you’re talking about it costing at least a million dollars for any company, and probably a lot more.
So, while not technically a full repeal, it’s pretty close to it. Masnick went so far as to say that this change would mean that they would have to shut down Techdirt entirely:
That certainly looks like it applies to all paid content. And, even worse, to things like web hosting. Or if Facebook or Twitter ever offered accounts where you pay to remove ads. Or, hell, to us on Techdirt, where some of our community have paid to support us, and we provide them extra features. Based on this, if any of our financial supporters (a key source of revenue for us) says anything that we get sued over, we can no longer claim 230 protections against it. That’s ludicrous. Not only would we have to shut down our comments, we’d likely be unable to let people support us directly any more (meaning we’d likely shut down entirely).
Honestly, we don’t see it any differently than him. We’ve read the proposed changes several times trying to find any other meaning, but we honestly are unable. Masnick, and Techdirt, does look to be completely screwed on their end should these changes become law.
Now, you might be asking yourself, “Uh, what about Freezenet?”
Well, it’s possible that Freezenet could survive. We do have a “.ca” domain and I am located in Canada. Those two factors, in and of themselves, gives me some minor advantages in this situation. It would require significant changes to our overall site structure and we would have to hope that a reliable ad network would come along that can either handle scrutiny of American law or be an ad network outside of the US – if we can find one at all of course. I’m not going to lie, it would be a devastating blow, but not theoretically fatal. Having survived two digital nuclear strikes already, I’m not exactly keen on the idea of having to survive a third one here. Trust me, it is not fun at all.
Of course, the next question is the chances of the bill passing. One thing working in its favor is the fact that it was proposed so early in the session of government. This gives the legislation the maximum amount of time to become law. Whether that happens before midterms or right at the last minute, the time is being given. Otherwise, we just can’t make any kind of judgement call at this point.
Over and above this, there is also the very real possibility that another bill will get tabled instead and take priority. Alternatively, this bill could get amended as well. So, there is technically wiggle room for things to change. Still, it’s pretty blindingly obvious that this legislation got off to an incredibly ugly start.
Drew Wilson on Twitter: @icecube85 and Facebook.
