Law Professor Pens Ridiculous, Nearly Fact-Free, Misleading Attack On The Most Important Law On The Internet

For the last few years, we've noted a worrying trend of a few law professors, who have decided that the best way to make people nice on the internet is to do away with Section 230 of the CDA. As we've noted repeatedly, Section 230 of the CDA is without a doubt the most important law on the internet. The internet would be a massively different (and worse) place without it. Almost every site or service you use would be very different, and the internet would be a much more bland and sterile place. Section 230 is fairly simple. There are two key elements to it:

1. People cannot blame service providers for content posted by users.
2. Service providers who decide to moderate/delete content cannot be held liable for the content they choose not to moderate (or the content they choose to moderate).

The reasoning behind the law should be pretty straightforward. First, you should apply any liability to the person actually doing the speech, rather than the person providing the tool for the speech. We don't blame the phone company when someone makes a threat over the phone. We don't blame the postal service when someone sends mail we don't like. We blame the individuals who actually did the thing.

But, because there are still some people who do terrible things online, a group of people have decided that perhaps the problem is not enough censorship and moderation -- and that yanking away the protection of Section 230 will magically make everyone nice on the internet. This is wrong and ridiculously short sighted. A month ago, we wrote about just such an attack from a minor internet/TV celebrity who clearly just didn't know any better. But now there's a law review article penned by law professor Ann Bartow, and it's a nearly fact-free and clueless attack on Section 230, based on a number of ridiculous to dangerous assumptions.

As if to warn how bad the article will be, it literally starts off with an attack on free speech -- suggesting that we have too much of it, and mocking "First Amendment absolutists" and the US's "unique" view on free speech. It doesn't even begin to acknowledge the results that you get when you take away free speech. From there, she pivots to Section 230, citing Danielle Citron, who has provided inspiration to many other law professors to attack Section 230. Amazingly, Bartow suggests Citron doesn't go far enough:

What she touches on far too briefly are the revenue producing and money saving advantages that Section 230 provides for Internet businesses both big and small. She laments the disgusting websites that profit from hate speech and nonconsensual porn. She expresses less concern about the mercenary corporations that earn billions by hosting, indexing, promoting and advertising these abhorrent websites; huge, “respectable” companies like Yahoo, Google, Facebook, Twitter, Instagram and Microsoft. They launder the proceeds of hate speech, and happily cash the checks.

Arguing that it's all about money is ridiculous. And wrong. We'll get back to that in a second, but let's go on to the next paragraph, where I can say with 100% certainty, that Bartow has no clue what she's talking about:

Anyone hosting a small blog knows that a good flame war or pile on will increase your links and page views, and therefore your advertising income. 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. Under Section 230 the financial incentives for ISPs all fall in favor of ignoring internet harassment. Controversial news reports, gossip blogs and sexy intriguing dating profiles, even when false, generate logons, eyeballs, and browser clicks, all the things that lead to revenue streams. Section 230 enables large ISPs to disclaim any legal or moral responsibility for the harms that online speech can inflict all the way to the bank.

I host a small blog. And Bartow is full of shit here. A "good flame war" does not increase links or page views. It generally involves a very small group of people who just yell at each other and drive most everyone else away. Why do you think so many news sites have been shutting down their comment sections? Furthermore, this shows a lack of understanding of how internet advertising works. Again, a flame war doesn't tend to attract more viewers to an article, it drives many away. It just attracts a small number of participants and those participants don't click on or look at ads. It does not increase ad revenue. This is a confused myth by people who have clearly never managed an ad-supported website.

Furthermore, if your site is nothing but harassment and flame wars, good advertisers stay the hell away. No one wants to be seen advertising on a site that is associated with harassment. And, in addition to that, public pressure has a way of pushing many sites to try to moderate out the worst behavior anyway. Bartow's article seems totally devoid of facts. Based on her description, you wouldn't even know that sites like Reddit and Twitter massively ramped up moderation efforts recently. To some, it's not enough (and to others it's way too much), but Bartow suggests that sites have no reason to do so. Clearly that's not true, because every major website does moderation -- and they have many incentives to do so, from not angering advertisers to general public perception and social pressure.

Bartow's law review article seems to be written in a parallel universe, in which she has no idea how internet sites or internet advertising actually operate.

But, armed with this near total misunderstanding of the internet, Bartow proceeds to suggest an absolutely horrific idea: make CDA 230 more like the DMCA notice-and-takedown process:

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.

This has been suggested before by others, but again, it suggests someone who lives in the world of theory and has no experience with how the internet operates in practice. The DMCA notice-and-takedown process is regularly used as a tool for censorship of content people don't like. Expanding it beyond copyright would just multiply that massively.

Again, as someone who runs a small blog, the number of requests we get from people demanding content be taken down is fairly incredible. It's Tuesday of this week and we've already received requests to take down one story (entirely) and a dozen or so comments on other stories. If we had to follow through on those we'd shut down all comments, and it would take away this entire community. It's not about "making money." It's about not being burdened with constant legal threats and the risk of having to go court because someone is unhappy.

Bartow doesn't think this is a big deal, because she says internet companies can afford it:

The stentorian and self-serving ISP party line is that without Section 230, behemoth online presences like Google, Yahoo, Bing, Facebook, YouTube and Twitter would not exist. Citron appears to accept this argument. But I do not believe it for one second, and you shouldn’t either. If they had to actively respond when their cyber products were actively harming people, just like other companies that make things are usually forced by law to do, their businesses might be less profitable. But they would still be highly profitable. And as long as there is money to be made on the Internet, ISPs will be pursing those dollars.

Yes, perhaps Google, Yahoo, Microsoft (Bing?!?), Facebook and Twitter could afford to deal with it, but they're giant massive companies. Small independent content creators like myself could not. We barely make any money as is. Being liable for others' content would almost certainly force us to shut down.

And that's the real concern that Bartow doesn't seem to acknowledge. The internet is not just those giant companies. It's the fact that anyone can start their own site and have a voice. The people she thinks she's defending -- the marginalized and the harassed -- would be much worse off in the world she thinks she wants. It would turn the internet from an open communications platform that has allowed marginalized groups to speak out, to a broadcast style world, where only the elite had the ability to speak their minds. Perhaps she doesn't mind because she's an elite law professor -- but she should talk to some of the people she thinks she's saving, who have relied on these platforms to make their voices heard.

Bartow claims that she knows sites would still be profitable without Section 230 because these US companies operate outside the US where there is no Section 230. But again, that's a constant risk and more a result of the nature of the internet, rather than anything else. I'm fairly concerned that there are some countries I cannot travel to because of a lack of Section 230 outside the US. The last time I was in Germany I literally had someone accuse me of war crimes because of a comment on Techdirt, and I started counting the hours left until I could get out of the country. Bartow is so sure of herself that she insists she's right despite all the evidence to the contrary.

Section 230 saves ISPs money. That is its real value to them.

No, it protects free speech and enables sites to operate in the first place -- especially smaller internet sites. It's not about "saving money" to me. It's about being able to actually create a forum where people can speak freely. There are tons of other pressures to moderate out the worst of the worst content, and Bartow (again) is simply factually wrong about the "value" of "flame wars" and on how internet advertising works. You'd think that she'd maybe talk to someone who actually has experience in this field before penning such an ignorant law review article, but apparently the Boston University law review doesn't require anything akin to fact checking to publish articles.

From there, Bartow breezily dismisses the fact that execs at Google were found guilty on criminal charges for not taking down a video fast enough, because it was overturned on appeal:

Many multinational ISPs were alarmed when three Google executives were criminally convicted in absentia in Italy for a privacy violation because the company hosted a video in which an autistic child was being bullied. Ultimately, though, the convictions were reversed on appeal, and there is no evidence that a single Internet company stopped doing business in Italy, even though the possibility of future content related arrests remains.

If Bartow really thinks that this has had no impact, then she, again, does not know what she's talking about. Many internet companies are quite fearful of doing business in such countries. We would never open an office there out of fear for the liability. We can operate there from afar because we know we're protected by Section 230 and the SPEECH Act. Again, big companies can afford to fight the liability. Small ones and individual operators cannot.

Finally, Bartow closes with the fact that internet companies are trying to expand in China as a weird sort of "proof" that it's fine for companies to operate under authoritarian regimes that crack down on free speech:

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. All the large Internet companies are operating in China to the maximum extent that the Chinese government will allow, because they can make a lot money there, in spite of the dangers.

When you're pointing to China as your "example" of how it's great to crack down on free speech, you've already lost your argument.

This article is a travesty of ignorance and confusion, culminating in an attack on free speech and the most important law on the internet.

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