Grinding the Section 230 Axe

Section 230 flowdownIf nothing else, Sunday's op-ed piece by the Yakima Herald-Republic's editor, Sarah Jenkins, proves that not everyone is thrilled with Section 230 of the Communications Decency Act. Her Lack of responsibility makes Web a reckless place article was, I suppose, intended to add fuel to the outrage at Section 230's use as a shield by Internet libel-mongers, and conversely, its utter uselessness in protecting professional journalists.

As I read it, the logic of the article can be summarized thus:

1) John Seigenthaler Sr. is a cool dude. He stands—as he always has—for freedom of speech.

2) Last year he was libeled—in an anonymous Wikipedia entry—by an unknown person using BellSouth as his/her ISP.

3) He was unable to determine the identity of that person because BellSouth refused to provide it.

4) BellSouth was able to hide behind Section 230 of the Communications Decency Act, which is a double standard. It protects the unregulated, unaccountable world of the Internet, but leaves print and broadcast journalists to twist in the wind.

5) Section 230 of the Communications Decency Act is bad.

After doing my own research, I came to the conclusion that items one through three are virtually indisputable, but after that the logic train derails. According to the article, Mr. Seigenthaler expressed understandable frustration—in a column he wrote—over Section 230's protection of online service providers when no such protection is available to the print and broadcast media.

As Seigenthaler explained in the USA Today column, "Federal law protects online corporations -- BellSouth, AOL, MCI, Wikipedia, etc. -- from libel lawsuits. Section 230 of the Communications Decency Act, passed in 1996, specifically states that 'no provider or user of an interactive computer service shall be treated as the publisher or speaker.' That legalese means that, unlike print and broadcast companies, online service providers cannot be sued for disseminating defamatory attacks on citizens posted by others."

As it turns out, the guy who posted the defamatory biographical information on Wikipedia did it as a joke; it was a prank designed not so much to defame Mr. Seigenthaler as to tweak a coworker. According to a Wikipedia entry on the subject, the prankster decided to do a little editing on John Seigenthaler's biography.

Brian Chase was an operations manager of Rush Delivery, a delivery service company in Nashville, Tennessee. As a prank on a colleague, Chase modified Seigenthaler's Wikipedia biography to suggest that Seigenthaler may have had a role in the assassinations of both John F. Kennedy and Robert F. Kennedy. While at his workplace on May 26, 2005, Chase added the false texts . . .

The fake entry wasn't noticed until September of the same year, and in October it was removed from public view on the Wikipedia site, although it took several weeks to disappear from other sites that mirrored it. The fiasco resulted in a number of changes to Wikipedia's policies and procedures.

The most frightening aspect of the whole thing, writes Ms. Jenkins, isn't so much that this happened to John Seigenthaler. The really scary thing is that, if this "flawed federal act" isn't repaired, it could happen to you. While it seems obvious enough that this sort of thing could indeed happen to anyone, that direct connection between libel-with-impunity and Section 230 seems considerably less certain.

For one thing, Section 230 doesn't condone defamation, and in no way reduces the libeler's responsibility. The intent of the law is simply to prevent an impossible burden for the conduits through which information flows; the sheer volume of information flowing through any Internet-connected digital pipeline makes the whole idea of monitoring it for content absurd. Even a relatively small, low-volume ISP would be crushed under the administrative weight of such a requirement. On the opposite end of the spectrum, an organization in the business of sifting through virtually all the content on the Net—Google for example—wouldn't be technically able to manage the burden at all, regardless of how many millions of workers they might hire.

In the context of professional journalism, Ms. Jenkins' suggestion of a double standard seems to miss the rather significant difference between the hands-on, low-volume environment of traditional journalism and that of the often impersonal, automated, high-volume Internet. In cases where the protections of Section 230 are put into play, one of the primary issues involves the distinction between deliberate, hands-on editorial control—a newspaper, for example—and the generally robotic operation of the Net. To frame it in the older, more traditional concepts of the world in which many media organizations were incubated, the phone company wasn't responsible for the conversations of its customers, but letters to the editor were always a different matter entirely. It's a similar double standard, in no small part due to Section 230's place within the federal laws that govern large-scale telecommunications enterprises.

Mr. Seigenthaler ran into a legal barrier when he attempted to obtain the identity of his defamer; the ISP would not—and legally could not—simply hand over the name of one of its customers on demand. While it's true that BellSouth couldn't be made liable for defamation posted on Wikipedia's site by one of its customers, and equally true that Section 230 is the legal mechanism responsible for the ISP's lack of responsibility in this case, the logical connection between the ISP's request for a court order and the protections offered by Section 230 is fuzzy at best. Even if Section 230 didn't exist at all, Mr. Seigenthaler's efforts to clear his name wouldn't necessarily have resulted in culpability on BellSouth's part, or for that matter the discovery of his defamer. The likely effect would have been a deep chill on free speech, and in fact this seems to have been one of John Seigenthaler's main concerns at the time, according to the same Wikipedia article on the controversy.

On 9 December, Seigenthaler appeared on C-SPAN's Washington Journal with Brian Lamb hosting. He said he was concerned that other pranksters would try to spoof members of Congress or other powerful figures in government, which may then prompt a backlash and turn back First Amendment rights on the Web.

As it turned out, Mr. Seigenthaler received a written apology from his character assassin, so although it seems he wasn't contemplating legal action against Mr. Chase anyway, a court order requiring the ISP to identify one of its customers was unnecessary.

The idea of modifying Section 230 to better address current issues in the publishing arena isn't without merit by any means, and the idea has its proponents in the media, and in the legal profession, too. But simply doing away with Section 230 and the protection it provides—whether it's BellSouth or Craigslist—is clearly not a practical solution. Newspapers, and similar organizations that rely on external sources for information, aren't exempt from the benefits of Section 230, either. Their online forums—blogs or otherwise—become a liability when externally-generated content is modified, but that's true of any online forum, newspaper or not. Private-sector bloggers may enjoy a greater level of irresponsibility than their commercial counterparts, but neither can cross the line of libel with impunity. A reckless disregard for the truth doesn't indicate an intrinsic problem with Wikipedia, or BellSouth, or Section 230; it's just part and parcel of the free flow of information. It ain't perfect, but it's still pretty good.


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