As is true of most things in society, and true of most things considered in relation to the law... things aren't ever quite as cut and dried as you suggest.
Three or four aspects to consider... noting that they're best seen with differing perspectives in relation to immediacy... as there's a difference between "right now" with a narrow interpretation of the law... and a broad perspective on "how we should look to implement change in the future" because of unintended consequences being realized.
First... the original intent of Congress in enabling the exceptions they have. Fostering the rapid development of the internet is a worthy goal in itself... as is the goal of fostering an expansion in freedom of expression enabled by the internet. In the degree that's being realized... great. In the degree the realization isn't all that we might have hoped it would be ? Hmmm. Reality doesn't stop in its tracks... or leave us tied to the tracks... because some beneficial change made in the past is uniquely irrevocable... when it turns out there were unintended consequences with some unexpected downside... as well as sought benefits... resulting from change. The element of gamesmanship in the law is borne of that... as what the law is changes over time based on little more than the consensus of lawyers and judges as they natter around the edges of what Congress meant... and what they didn't intend. Case law, over time, will head off the exceptions Congress makes, herding them back towards equality with the larger body of law similarly subjected to legal wrangling.
Even if you are a strict constructionist in relation to the Constitution... you can't expect the recent changes made in the law to exist in perfect isolation from the rest of the law. Eventually, and inevitably, the old and the new are harmonized... but, typically, not until an issue is made "ripe"... not until the conflicts created emerge in clear enough scope and perspective. The plodding pace of the law... as it evolves within the legal process... leaves ample room for differing interpretations to allow and enable excess... someone inevitably gets out ahead of their skis... thinking the law must and will support them... only to learn otherwise in a surprise...
The internet phenom... is about there. Ripeness is happening. And, that has various consequences in multiple spheres, not only in the strictly legal in interpretation or in partial re-writes addressing the smoothing of wrinkles. Pretty obvious recent instances in... backpage.com.... and in sales taxes. Worth noting in both of those instances... that there's a fairly predictable element... in how much change society really intended, and intends to tolerate. For businesses, along with knowing and complying with the rules as they are... there's also a need for understanding that element in the nature of limits... both to avoid being the one that gets ahead of the skis too much, as that has major costs... and in avoiding surprise more generally. What the law is... and what it is likely to be in interpretation or modification... still a function of what society wants and accepts. If you ignore the law... while focusing on giving society what it wants... the outcome will largely depend on how good a job you do of understanding society, big picture, as opposed to satisfying a niche.
If you think "protecting internet companies" is a primary social good... that will have corporate lawyers winning their battles with the public... while jousting over the relative merit and value of "protecting internet companies and executives" versus "protecting children" or "protecting free speech" ? The backpage.com saga is instructive in more than a few aspects of the disconnects in expectations between those testing the limits of the law...and those defining and defending the limits. One in the time that it took for conflict being created by aggressive interpretation... to find resolution in officialdom planting a few new fence posts ?
Should be pretty clear... that "interpretation" in our system... isn't a singularity. Instead, we foster different interpretations and then resolve them in adversarial proceedings. Backpage appears it was a fairly classic example... of how an overly aggressive interpretation... can lead pioneers we might otherwise see as delivering social benefit in change... into getting out ahead of their skis. When the new frontier has no limits... it is often hard to see where the limits will be... when the wild west is tamed and civil society reimposes civility within more traditional boundaries. Worth noting that the backpage founders wouldn't be where they are today... if they had not made errors in interpreting the (future) limits of social tolerance...
Consider that above as one instance of the intended benefit coming into conflict with the limits of social tolerance ? Notice that while the issues in play at backpage did include 47 USC concerns... it wasn't internet law and protections for the internet isolating providers from social responsibility... that mattered in determining when, where, why and how lines in the law were crossed ?
Second... of course, is that as the desired benefit intended occurs in fact, various frictions will emerge. Every change that succeeds as wildly as the internet has... tends to contain some of the seeds of its own destruction. But, those seeds still require someone planting them, tending them... leading to a future harvest.
What facebook is... isn't a function of the law... in the degree that its social impacts cause friction and tends to violate our norms. How that is resolved... depends largely on the reality underpinning the law... far more than it depends on legalism in aggressive interpretations of what the law "should mean" in application in a specific instance.
The core errors in yours... are two.
The first one is in: There are some very narrow exceptions; copyright, federal criminal law, and, more recently, sex trafficking.
Two aspects, as the bread layering over the nuance in the meat in the middle of this sandwich:
First, while I'll wrongly ignore copyright and sex trafficking on the same grounds... it is obvious error to dispose of federal criminal law as "narrow"... when it is in fact the antithesis of that, being, more like the internet than not... in being a force unto itself that is constantly expanding and testing its own boundaries. If you are seeing an easy out in disposing of the criminal law as not relevant because "narrow"... assuming that it is a simple matter of choice and good behavior to not be a criminal... while 47 USC exemptions will ensure that it is clear cut which side of the law you fall on... that is a mistake. And, it isn't a tactical error... but a strategic blunder.
Second, that view... that there are only narrow exceptions... fails equally as badly... again on the scale of strategic blunder... by failing to understand the law itself in context... as a layered and conflicted affair.
That's true even at the level of nuance... that being one of the reasons for hiring lawyers, even if you are well versed in the law... as it is their job to know the all important nuances... but, here, the vagaries in nuance needn't be a limit. Put simply, whatever protection you think the law has carved out for computer service providers... and, note, not withstanding either the basic intent or the letter of the law in whatever Congress knowingly and deliberately enacted... your privileged carve out in law... doesn't supersede my fundamental rights.
The meat in the middle: I'm not a criminal... so that's not a problem... is how good intent ends in jail time.
If your "full compliance" with the law... still results in my rights being violated... the only element missing is a prosecutor who is clever enough to figure out how that happened... which laws were violated in the process... and the who, what, where, when and why of it... along the path to enabling the error in the end result. If you want to... you can easily craft a sudoku puzzle with more than one correct solution. The law is a puzzle of that nature... but, when your lawyer has one solution, and mine has another... only one of them will pass muster with the judge as being the one that is most correct. That your solution to the puzzle "works" and seems to be correct... can be deceiving.
In specific relation to the law: meaning section 230: How do you read it ? It is pretty clear as you do read the law... that you shouldn't expect to have others reading it narrowly as if it is composed of standalone clauses... as if it intends to facilitate outcomes that are the opposite of the intent... expressed in the statements of Findings and Policy.
It makes some things pretty easy for judges. So, given a dispute: in the issue at question, does the behavior on trial "maximize user control over what information is received " or does it instead operate to limit or interfere with users control over the information flow ? The law makes it clear that its purpose is to empower users in having control... in both the positive and negative instance... enabling them in accessing what they want to access... and enabling them in disabling access to those things they want to avoid.
The law unequivocally states that they "shall not be treated as the publisher" of third party content. It doesn't matter at all what they call themselves.
As mine above should make clear... nothing in the law is unequivocal... when the entire point of law in our system is to ensure that when there is conflict... there is equi vocal representation in any dispute.
And reality then... is that certitude in opinion is often not validated in outcome. The blinders you choose to wear... don't impose a narrowing of vision on others. And we all have our own blinders.
Parts of the law... farther down the page... don't obviate the precedent conditions... some of which are overtly stated at the top of the page... in the statements of Findings and Policy. Others intrinsic, still mentioned... such as the obligation of good faith... the lack of which thus obviates any other argument.
That "they shall not be treated as the publisher" is an equivocal because conditional statement. You can't gain the benefit of the privilege the law enables... while ignoring the conditions precedent to its application.
And, "they shall not be treated as the publisher" is not what it says, anyway:
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Someone is the publisher... with those obligations of the publisher intact... and all the law does here is limit the application to the originator... the speech is owned by the speaker... not the transparent transmitters of others published works. Obtaining that benefit... still requires remaining transparent as a transmission channel... while not exercising the (other than excepted) editorial controls of publishers in the process.
It doesn't matter at all what they call themselves.
That's one that's liable to be quickly and easily disposed of in court. You don't need to dig very deep into the nuance to address it, either. Two court filings... filed by the same party... each claiming the exact opposite of the other to be true ? And, "it doesn't matter" ? Good luck with that.
Should note that issue has nothing much to do with "the internet" or section 230... but has a lot to do with Facebook in particular... and the unique risks they've created for themselves while trying to torture the law into ignoring some pretty obvious inconsistencies...
But, as it is more important in context of understanding... I'll back away from that bit in the overt obviousness... to focus on the error in the limit in the social. Mine above makes the case that the law is a dim reflection of the intent of the governed... leaving lots of wiggle room for enabling legislation to conflict with principle... most of which will pass unnoticed by everyone but the few seeking the benefit. Mostly we don't care. That's just politics... the same now as Mark Twain noted it.
But it is pure error, still... to think that ability to massage politicians to deliver some graft in legislative form... means you can run roughshod over the core values the larger society has no intent of allowing to ever be run over in that way...
And a convergence occurs there... between that issue seen in legal light... and that issue seen in relation to the market...
You may think it doesn't matter what they call themselves....
But, it matters to me. I'm a consumer... a customer... and business is supposed to care about me and what I care about... And when it doesn't... it is an indication that something fundamental is broken. The market should fix that brand of error... but... when it doesn't ?
Section 230 is BY DESIGN... intended to empower consumers... users... even more than the market "would" tend to do otherwise... and it does that by imposing limitations on market participants market power...
Protections enabled in relation to the blocking and screening of offensive material... are not broad. They don't empower commercial interests in any undertaking... lacking good faith...
It is simply wrong to try to twist that intent... into a protection of commercial interests... when they are engaged in the opposite behavior as intended... as when they are imposing greater restrictions on users access.
As, for instance, when seeking to limit access by those expressing particular opinions... which is wrong under the law as it is written... even without having to address the larger issues of users Constitutional rights ?
So, the artifice of suddenly finding a reason to suppress or deny access to those with opposing opinions... that has those opinions relabeled, in bad faith, as "otherwise objectionable, whether or not such material is constitutionally protected" ?
LOL! A dependent clause limiting civil liability... when providers are blocking offensive material... is probably not going to work in being re-purposed more broadly... with an intent to apply it in justifying removal of users constitutional protections in rights of free expression ? The Supreme Court... not going to genuflect and allow Congress to broadly subvert the Bill of Rights with a narrowly defined law intending only limits in civil liability... if and when there is "good faith"... ie., no intent to violate users Constitutional rights.
As written: any action voluntarily taken in good faith... still operates only within the scope of limiting civil liability... but even that first requires passing tests of voluntarism and good faith... which requires... no conspiracy... and a finding of benign intent... in order to win access to limits in CIVIL LIABILITY... which is the clear limit in the protection intended. If there is a conspiracy ? If there is no proof of good faith... the benefit may not be won... but if there is a proof of the opposite... in a lack of good faith... as in an intent to limit (any) users exercise of constitutional rights ? Poof.
to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected... is not a blank check empowering commercial interests in determining for themselves what is objectionable. All that does is say IF you do that right... as within the limits the law already recognizes... you may avoid civil liability. It doesn't (because it can't) grant any rights or allocate any unique powers... as to empower ISP's to override the Supreme Courts issued opinions on any issue ?
Offensive materials may be protected... and acceptable as "constitutionally protected" under the law... without that justifying forcing anyone to have it imposed on them ? No one will quibble with that. Try to re-interpret that to mean more in the opposite... claiming the law intends to create rights and powers for some class of commercial interests... to empower some broad new filtering mechanism to "protect society" by broadly coordinating and limiting access to materials that are extra-legally and extra-constitutionally defined with arbitrary limits in "what might offend "? That's the definition of bad faith.
Note this article linked below... was written ahead of the fact ? What I'm saying is that no one should have been surprised by any of what is addressed there... or anything in relation to backpage... But, I'm also noting that backpage are not the only ones who have opted for "aggressive" interpretations of the law, seeking to stretch its limits, in ways that allowed them to find protections in the law that weren't there... or that, in any case, aren't there now MORE CLEARLY exactly because on that instance in which they misread the intent...
Section 230: A Key Legal Shield For Facebook, Google Is About To Change |
