Section 230 Protects Spreading Misinformation

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By Reed Anfinson
Swift County Monitor-News

Facebook,  Twitter, and YouTube facilitate misinformation poisoning the American dialogue on topics from politics, to health, to voting, to immigration, to religion. People have the right to lie. They have the right to make fools of people who fall for their information pranks or deluded rantings.

They can promote patently false information that reinforces beliefs that could kill. Despite their failings, these companies are protected from the consequences as they make billions on the chaos and damage they create.

Protection for those internet platforms from restrictions or responsibility goes back to the 26 words that make up the 1996 Communications Decency Act. Those 26 words are: “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.” As long as the internet providers don’t try to act as editors of the information, just letting information flow unhindered, they are protected.

 The act does allow social media companies to take down information that is obscene or violates their published standards for content. Those standards tend to be very loose.

Shielded from responsibility, the online tech companies make billions in profits. Many who use their sites sicken knowledge and coarsen conversation. They drive anger and mistrust. Critics on both sides of the political aisle argue the protections need to be amended.

When he was president, Donald Trump issued an executive order to get the Federal Trade Commission to limit Section 230’s power. His efforts were unrewarded.

President Joe Biden sits on the sidelines saying that Section 230 should be “revoked immediately” but has not acted. He is, however, actively pursuing revision of the law.

One of the most recent attempts to change Section 230 comes from Minnesota Democratic U.S. Sen. Amy Klobuchar. She has proposed a bill that would strip the companies of the legal shield offered by Section 230 “if their algorithms promote health misinformation during a public health crisis,” National Public Radio reported.

“These are some of the biggest, richest companies in the world, and they must do more to prevent the spread of deadly vaccine misinformation,” Klobuchar said in a statement. “The coronavirus pandemic has shown us how lethal misinformation can be, and it is our responsibility to take action.”

Recently, the Kaiser Family Foundation found that “two-thirds of unvaccinated people believe myths about COVID-19 vaccines, such as the baseless notion that vaccines cause the disease,” Klobuchar said.

When drafted 25 years ago, Section 230 was meant to promote the unfettered growth of online speech. It was to be the future of civic, business, and personal conversations that would revolutionize work and enlighten us all. It was to be a utopia of conversation. Too often it is a cesspool of falsehoods and vitriol.

It “now distorts legal incentives for platforms to respond to digital misinformation on critical health issues, like COVID-19, and leaves people who suffer harm with little to no recourse,” Klobuchar’s office said.

It seems like a worthy exception our U.S. Senator has proposed. We are in a new wave of a deadly pandemic with a variant that is even more infectious and deadly. Clear and accurate information is essential to winning the battle to stop its spread and stop the evolution of even worse variants.

Facebook, Google’s search results that are targeted to our interests and our prejudices, and Google’s YouTube are constantly used to spread outrageously false and deceptive information. Their facilitation of misinformation has likely caused numerous deaths as people fear getting vaccinated due to the false information they are inundated with constantly.

But there are always problems with creating exceptions. Among them, they tend to lead others to demand exceptions for their grievances. There is also danger in allowing the government to define what is untrue. Bias is inherent in those who are in power.

“You are entitled to your own opinion but not your own facts,” the late U.S. Sen. Daniel Patrick Moynihan famously said. But today, some seem to believe that they are also entitled to define facts to suit their agendas.

“To the extent that people want to force social media companies to leave certain speech up, or to boost certain content, or ensure any individual’s continuing access to a platform, their problem isn’t Section 230—it’s the First Amendment,” Mary Anne Franks, professor of law at the University of Miami, and president of the Cyber Civil Rights Initiative, told Matthew Ingram of the Columbia Journalism Review.

Klobuchar’s bill would condition protection under Section 230 for misinformation about health as determined by the Department of Health and Homeland Security Secretary.

 “For the bill to survive a legal challenge, the Courts would need to substantially expand the exceptions to the First Amendment, and I think that could have substantial negative consequences,” Jeff Kosseff, an assistant professor of cybersecurity law at the United States Naval Academy, told Ingram.

While we may not like all of what we see on the internet, “nearly all misinformation is protected by the First Amendment. So even if Facebook weren’t protected by Section 230, what would people even sue over? Any lawsuit would fail—it would just be a lot more expensive and wasteful of the court’s time and resources in the process,” Mike Masnick, who runs technology analysis site Techdirt and co-founded a think tank called the Copia Institute, told Ingram.

They make compelling arguments for leaving Section 230 alone. But they don’t convince everyone there is nothing that can be, or should be, done. “There’s always a lot of handwringing over slippery slopes when it comes to restricting speech, but what about the slippery slope of allowing billion-dollar corporations to profit from speech that literally gets people killed?” Franks asks.

At the dawn of the internet, there was a celebration that it would remove the gatekeepers who provided the information we read, heard, and saw. Without those gatekeepers, who could be sued for printing or airing false information, we now suffer from a firehose of misinformation.

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