Notwithstanding the First Amendment, there *are* categories of speech that US law criminalizes: actual threats of violence, criminal harassment, and committing certain kinds of legal, medical, election or financial fraud. These are all exempted from Section 230, which only provides immunity for *civil* suits, not criminal ones.

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What Section 230 really protects platforms from is being named to unwinnable nuisance suits by unscrupulous parties who are betting that the platforms would rather remove *legal* speech that they object to than go to court. A generation of copyfraudsters have proved that this is a very safe bet:

https://www.techdirt.com/2020/06/23/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act/

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In other words, if you made a #MeToo accusation, or if you were a gig worker using an online forum to organize a union, or if you were blowing the whistle on your employer's toxic waste leaks, or if you were any other under-resourced person being bullied by a wealthy, powerful person or organization, that organization could shut you up by threatening to sue the platform that hosted your speech. The platform would immediately cave.

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But those same rich and powerful people would have access to the lawyers and back-channels that would prevent you from doing the same to them - that's why Sony can get your Brahms recital taken down, but you can't turn around and do the same to them.

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This is true of every intermediary liability system, and it's been true since the earliest days of the internet, and it keeps getting proven to be true. Six years ago, Trump signed SESTA/FOSTA, a law that allowed platforms to be held civilly liable by survivors of sex trafficking. At the time, advocates claimed that this would *only* affect "sexual slavery" and would not impact consensual sex-work.

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SESTA/FOSTA made voluntary sex work more dangerous - and also made life harder for law enforcement efforts to target sex trafficking:

https://hackinghustling.org/erased-the-impact-of-fosta-sesta-2020/

Despite half a decade of SESTA/FOSTA, despite 15 years of filternets, despite a quarter century of notice-and-takedown, people *continue* to insist that getting rid of safe harbors will punish Big Tech and make life better for everyday internet users.

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As of now, it seems likely that Section 230 will be dead by then end of 2025, even if there is nothing in place to replace it:

https://energycommerce.house.gov/posts/bipartisan-energy-and-commerce-leaders-announce-legislative-hearing-on-sunsetting-section-230

This isn't the win that some people think it is. By making platforms responsible for screening the content their users post, we create a system that only the largest tech monopolies can survive, and only then by removing or blocking anything that threatens or displeases the wealthy and powerful.

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Filternets are not precision-guided takedown machines; they're indiscriminate cluster-bombs that destroy anything in the vicinity of illegal speech - including (and *especially*) the best-informed, most informative discussions of how these systems go wrong, and how that blocks the complaints of the powerless, the marginalized, and the abused.

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On July 14, I'm giving the closing keynote for the fifteenth Hackers On Planet Earth, in Queens, NY:

https://www.hope.net/talks.html

On July 20, I'm appearing at Chicago's Exile in Bookville:

https://exileinbookville.com/events/39808

--

Support me this summer on the Clarion Write-A-Thon and help raise money for the Clarion Science Fiction and Fantasy Writers' Workshop!

https://clarionwriteathon.com/members/profile.php?writerid=293388

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EFF
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CC BY 3.0
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