Once again, we have people pushing the idiotic notion that restricting free speech can be used to protect oppressed groups. This paper was written by Ann Bartow, Director of the Franklin Pierce Center for Intellectual Property and Professor of Law at the University of New Hampshire School of Law. In it she calls for an end to Section 230 of the Communications Decency Act (CDA). This law gives sites like YouTube, Facebook, and others immunity from liability regarding content that is posted on their sites by users. The exception to this immunity is content that violates criminal law and content that violates IP law. That second exception is why we have to deal with DMCA takedown nonsense, because sites will be held liable for copyright violations if they don’t respond promptly to takedown requests.
Speaking of the DMCA, it turns out that’s exactly where Bartow is drawing inspiration for a proposed alternative to Section 230 of the CDA. She wants a notice and takedown system for dealing with online harassment. Now this isn’t a new idea, opponents of free speech have gone after Section 230 before.
Recently and notably, Arthur Chu called for an end to this law, and for it to be replaced by a DMCA style system. Chu is a pseudo-celebrity whose biggest claim to fame is being a Jeopardy! contestant. I highly doubt any politicians are using his comments as a guide when crafting legislation, so his opposition to Section 230 wasn’t too concerning. When actual law professors start writing papers about this topic, it becomes a bit more worrisome. Politicians might take these suggestions seriously.
Bartow begins by showing her utter disdain for the idea of free speech in her opening paragraphs. She criticizes liberals in particular for being against the regulation of speech when they are in favor of regulating everything else. She states: “Speech, however, is often an outlier. Many liberals staunchly oppose any regulation of speech. The U.S. government has made so many truly bad speech interventions, this is understandable, but still problematic.” While she might consider free speech “problematic,” I actually think the hypothetical liberals she’s arguing against have a point: The government, or all governments for that matter, have a terrible track record when it comes to regulating speech. They tend to use it for oppressive purposes. It might actually be better not to give the government that kind of power.
In typical social justice fashion, she tries to dress up her authoritarian agenda by appealing to poor oppressed women and minorities: “On a much bigger scale the same incentives apply to the largest ISPs. They create and host platforms designed to attract as much online traffic as possible. They benefit monetarily from popular content that is often hostile and offensive to groups with less power in society, such as sexual minorities, racial minorities, religious minorities, and, as Citron describes in such harrowing detail, to women generally.”
After this, we finally get to the meat of the paper, her proposed solution to the problem of free speech:
Reform must be bolder to have any measurable effect. A more conditional ISP immunity could be framed somewhat along the lines of the Digital Millennium Copyright Act (DMCA). Under the so called “notice and takedown” provisions of the DMCA, when an ISP takes down online information that has been used in a way that a copyright holder alleges was not authorized, it is essentially immune from copyright based liability for distributing infringing materials. If it chooses not to respond to the copyright holder’s demand, however, the ISP may later have to defend its decision not to takedown the disputed material on the merits. Risk aversion usually motivates takedowns. Even now, when victims hold the copyright in photos used to torment them, and ask ISPs to remove them for copyright reasons, ISPs generally remove them with great alacrity to avoid potential liability for copyright infringement. A recalibration of Section 230 immunity could establish a similar framework that creates potential liability when ISPs refuse to assist people whose victimization through online bullying, stalking and harassment they are facilitating and profiting from. Because speech torts are so much harder to prove than intellectual property infringement, takedowns in this realm are less likely to be routine.
Now this proposal should be raising alarm bells. The DMCA is not what most people would consider to be a great model to emulate. It is already abused like crazy. IP holders regularly abuse the takedown system to go after critical reviews and other examples of fair use, or in cases of extreme incompetence simply issue takedown notices based on the title even though the content is not in any way related to their IP. And then we have people who aren’t even attempting to defend their IP but are just issuing bogus claims to censor content they disagree with.
Now if a phony DMCA claim is made against you, that’s not necessarily the end of the story. You can challenge the claim. Of course this requires you to give up personal information so that the other party can take you to court. In fact, sometimes censorship is not even the reason for issuing the claim, but merely to get access to someone’s personal information. It’s absurd that Bartow lists stalking as a type of harassment she is working to stop with this proposal, when DMCA and similar systems greatly assist stalkers in obtaining information about their targets. It can also be used as a tool for doxxing, which is supposed to be a major form of online harassment. I would expect anyone seriously concerned with online harassment would want to reform the DMCA, not spread its nonsense further.
The next step after giving up your personal information is for the other party to take you to court. Sometimes the people who make the claims are bluffing and will drop the claim after you challenge them, but certain companies are intent on crushing fair use and will take you to court. This can be a long and expensive process, possibly having multiple appeals, and many people can’t bear the financial burden. The fact of the matter is the current DMCA regime benefits the rich and powerful disproportionately because the average user doesn’t have the money to fight the claim in court and will just let their videos be censored rather than fight the claim.
With that in mind, it’s hard to see how using the DMCA model to deal with harassment will benefit any oppressed, downtrodden, or marginalized groups. The big winners will be the rich and powerful who can make harassment claims against any criticism of them, and have the bulk of that content wiped off the Internet because the average user can’t put up a costly court battle to defend it.
A major theme throughout the paper is the argument that many social media companies fight for Section 230 because it’s financially beneficial to them, and she may have a point here. I don’t pretend to believe that Google or Facebook are completely benevolent, and they are likely against regulating speech online because it keeps them safe from lawsuits, more so than any ideal of protecting free speech. On the other hand, just because some companies are supporting it for selfish reasons doesn’t automatically make the law bad. Even if companies are only interested in protecting this law to make more profit, that doesn’t provide any reason why we should get rid of it.
The final section of the paper is arguing that Section 230 isn’t really necessary because many other countries have no equivalent law and yet social media sites like Facebook and Twitter continue to do business in them. The final paragraph basically says censorship is no big deal because companies still do business in China. She states: “If Section 230 style immunity was critical for any reason other than maximizing profits, no ISP would do business in China, which has a highly censored Internet infrastructure, and actively jails people for criminal speech offenses such as ‘spreading rumors.’ Yet Google is actively trying to expand its presence there. So are Microsoft, Facebook, Linked In, and Twitter just to name a few.”
The fact that some companies choose to do business under authoritarian regimes is not at all a convincing reason as to why we should emulate their speech policing. China provides a great example of censorship being used by the powerful against the powerless, and should be taken as a warning of what to avoid—not a target to aim for.
Despite claiming that she is looking out for groups with less power in society, her proposal would seem to disproportionately benefit those who have power, and there is no reason to believe any genuinely oppressed group will benefit from it.