Another Day, Another Bad Bill To Reform Section 230 That Will Do More Harm Than Good

Legal Issues

from the no-bad dept

Last fall, when it first came out that Senator Brian Schatz was working on a bill to reform Section 230 of the Communications Decency Act, I raised questions publicly about the rumors concerning the bill. Schatz insisted to me that his staff was good, and when I highlighted that it was easy to mess this up, he said I should wait until the bill is written before trashing it:

Well, now he’s released the bill and I am going to trash it. I will say that unlike most other bills we’ve seen attacking Section 230, I think that Schatz actually does mean well with this bill (entitled the “Platform Accountability and Consumer Transparency Act” or the “PACT Act” and co-authored with Senator John Thune). Most of the others are foolish Senators swinging wildly. Schatz’s bill is just confused. It has multiple parts, but let’s start with the dumbest part first: if you’re an internet service provider you not only need to publish an “acceptable use policy,” you have to set up a call center with live human beings to respond to anyone who is upset about user moderation choices. Seriously.

subject to subsection (e), making available a live company representative to take user complaints through a toll-free telephone number during regular business hours for not fewer than 8 hours per day and 5 days per week;

While there is a small site exemption, at Techdirt we’re right on the cusp of the definition of a small business (one million monthly unique visitors – and we have had many months over that, though sometimes we’re just under it as well). There’s no fucking way we can afford or staff a live call center to handle every troll who gets upset that users voted down his comment as trollish.

Again, I do think Schatz’s intentions here are good — they’re just not based in the real world of anyone who’s ever done any content moderation ever. They’re based in a fantasy world, which is not a good place from which to make policy. Yes, many people do get upset about the lack of transparency in content moderation decisions, but there are often reasons for that lack of transparency. If you detail out exactly why a piece of content was blocked or taken down, then you get people trying to (1) litigate the issue and (2) skirt the rules. As an example, if someone gets kicked off a site for using a racist slur, and you have to explain to them why, you’ll see them argue “that isn’t racist” even though it’s a judgment call. Or they’ll try to say the same thing using a euphemism. Merely assuming that explaining exactly why you’ve been removed will fix problems is silly.

And, of course, for most sites the call volume would be overwhelming. I guess Schatz could rebrand this as a “jobs” bill, but I don’t think that’s his intention. During a livestream discussion put on by Yale where this bill was first discussed, Dave Willner (who was the original content policy person at Facebook) said that this requirement for a live call center to answer complaints was (a) not possible and (b) it would be better to just hand out cash to people to burn for heating, because that’s how nonsensical this plan is. Large websites make millions of content moderation decisions every day. To have to answer phone calls with live humans about that is simply not possible.

And that’s not all that’s problematic. The bill also creates a 24 hour notice-and-takedown system for “illegal content.” It seems to be more or less modeled on copyright’s frequently abused notice-and-takedown provisions, but with a 24-hour ticking time bomb. This has some similarities to the French hate speech law that was just tossed out as unconstitutional with a key difference being one element of notification of “illegal content” is a court ruling on the illegality.

Subject to subsection (e), if a provider of an interactive computer service receives notice of illegal content or illegal activity on the interactive computer service that substantially complies with the requirements under paragraph (3)(B)(ii) of section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)), as added by section 6(a), the provider shall remove the content or stop the activity within 24 hours of receiving that notice, subject to reasonable exceptions based on concerns about the legitimacy of the notice.

The “notice requirements” then do include the following:

(I) A copy of the order of a Federal or State court under which the content or activity was determined to violate Federal law or State defamation law, and to the extent available, any references substantiating the validity of the order, such as the web addresses of public court docket information.

This is yet another one of those ideas that sounds good in theory, but runs into trouble in reality. After all, this was more or less the position that most large companies — including both Google and Facebook — took in the past. If you sent them a court ruling regarding defamation, they would take the content down. And it didn’t take long for people to start to game that system. Indeed, we wrote a whole series of posts about “reputation management” firms that would file sketchy lawsuits.

The scam worked as follows: file a real lawsuit against a “John or Jane Doe” claiming defamation. Days later, have some random (possibly made up person) “admit” to being the Doe in question, admit to the “defamation” and agree to a “settlement.” Then get the court to issue an order on the “settled” case with the person admitting to defamation. Then, send that court order to Google and Facebook to take down that content. And this happened a lot! There were also cases of people forging fake court documents.

In other words, these all sound like good ideas in theory, until they reach the real world, where people game the system mercilessly. And putting a 24 hour ticking time clock on that seems… dangerous.

Again, I understand the thinking behind this bill, but contrary to Schatz’s promise of having his “good” staffers talk to lots of people who understand this stuff, this reads like someone who just came across the challenges of content moderation and has no understanding of the tradeoffs involved. This is, unfortunately, not a serious proposal. But seeing as it’s bipartisan and an attack on Section 230 at a time when everyone wants to attack Section 230, it means that we need to take this silly proposal seriously.

Filed Under: appeals, brian schatz, call centers, censorship, john thune, notice and takedown, section 230, transparency