
Section 230: A Key Legal Shield for Facebook, Google Is About to Change - Mononokay
https://www.npr.org/sections/alltechconsidered/2018/03/21/591622450/section-230-a-key-legal-shield-for-facebook-google-is-about-to-change
======
rayiner
This bill is a complete disaster. Sometimes the EFF can be a bit dramatic;
this is not one of those times. It's every bit as bad as they say it is.

Here is the text: [https://www.congress.gov/bill/115th-congress/house-
bill/1865...](https://www.congress.gov/bill/115th-congress/house-
bill/1865/text)

The key is 18 U.S.C. 1591. That statute creates criminal liability for those
who use force or coercion to cause someone to engage in a commercial sex act,
or anyone who "benefits, financially or by receiving anything of value, from
participation in a venture" to do so. 18 U.S.C. 1591(a)(2). So far so good.
You can get the guy who runs the sex trafficking business, not just the grunt
who uses the force.

The bill amends 18 USC 1591(e) to state: "The term ‘participation in a
venture’ means knowingly assisting, supporting, or facilitating a violation"
of the foregoing provision.

One, this is grammatical lunacy. "Participation in a venture" means what you
think it means: people who participate with intent to further the criminal
enterprise. The bill amends section 1591 to define "participation in a
venture" quite differently from its plain meaning. It's like a law that says:
"as herein used, 'green' means green as well as blue and purple."

Two, what the heck does "knowingly facilitate" mean? Is it enough to know
that, in the abstract, your service is used to facilitate sex trafficking?
Because its _guaranteed_ that services like gmail are used to facilitate sex
trafficking. You couldn't say otherwise with a straight face. Or do you have
actually intend your service to facilitate sex trafficking (like backpage
arguably was doing)? If that was the intention, the drafters really screwed up
because "knowing" is a lower standard than "intent." You learn that in the
first year of law school.

~~~
jstarfish
> Two, what the heck does "knowingly facilitate" mean?

Historically this has been rather clear.

Take the Silk Road. Arguably just an eBay clone on the dark web, right? Except
the proprietor specifically marketed it for the trade of drugs. There was no
question about what its intended purpose was; he created it to sell drugs,
internal documents show he knew drug trade was going on; by all accounts, he
_knowingly participated_ in the venture.

There was a small ISP somewhere in NY. Authorities notified them that they
were hosting child porn provided by a customer. No biggie, right? Section 230
and all. Except they didn't take action to remove it, which put them in the
camp of...knowingly participating in its possession/distribution. They got
fined.

Backpage is in the same camp. They know what's going on, even contributing to
it. They knowingly participate in the venture.

~~~
rayiner
“Knowingly participate” is the existing language. I agree it’s clear.
“Knowingly _facilitate_ ” is the new language. That has a much broader
meaning, especially when you’re talking about Internet services, which are
designed to “facilitate” whatever the user wants to do.

~~~
jstarfish
I see your point, and I don't necessarily disagree, but for whatever
facilitate does actually mean, you'd still have to be a _knowing_ participant
in the matter.

In this context, I can only speculate the language was added wrt the editing
of specific ads. They weren't assisting in their publication, they weren't
supporting their publication, but they did know what they were and made
changes to...facilitate...those ads staying published and under the radar of
authorities.

But I do see your point, and agree that it will likely be used for some
unforeseen interpretation.

~~~
rayiner
You keep saying “participant.” The law basically removes the word
“participation” by defining it to mean things other than what everyone would
consider “participation.”

You just have to be a knowing “facilitator.” Toyota can’t deny that it “knows”
that it’s cars are used to “facilitate” drug deals. It’s not a “participant”
in those drug deals, but the whole point of this law is to get rid of the
“participation” requirement.

~~~
ewrong
Surely there is still a distinction between knowing that people use your
product to do bad things & knowing that specific people are doing specific bad
things and continuing to allow it.

~~~
cft
The problem is that the cost to argue this legal distinction in a civil court
could be in the $500,000 - $1,000,000 range. Fine for Facebook, deadly for
your gaming or crypto forum provider.

------
mankash666
This law is not good for the internet. This isn't about Google and Facebook,
it's about the open internet as we know it.

And, it's high time we recognize these services to be "infrastructure". You
don't persecute the street owner for vehicles that drive on it - if you could,
the state would be liable for all crimes involving a vehicle

~~~
showerst
I disagree here. Child porn and trafficking are always the arguments used to
go after free speech on the internet in the court of public opinion.

If we narrowly edit the law to specifically go after those cases, then it
creates less opportunities for scandal later that end in much broader
restriction.

Also -- although it should go without saying, those things are actually bad!
So if an unintended interpretation is making them easier, clarifying (with as
little collateral damage as possible) that is congress' job.

~~~
reacweb
Do you ear often cases of counterfeit money? Almost never because the
punishment is very high and it is considered as a very severe crime. IMHO,
child porn is only a scapegoat for liberticide laws. If the states wanted to
fight child porn, it could eradicate it without changing any law. Even if
child porn is a serious issue, I am convinced it is completely negligible
compared to the number of children raped by their parents. Even stars like
Woody Allen are concerned.

When I read that we should fight child porn, it means that we should give up
our freedom and our democracy. Choose your fight.

~~~
jstarfish
> Even if child porn is a serious issue, I am convinced it is completely
> negligible compared to the number of children raped by their parents.

This problem is worse than that though. Children abused by parents/caretakers
are victims of circumstance. Problems with foster care aside, moving the child
out of that environment should stop the abuse.

The problem here is that of commerce. There is an endless stream of Uncle
Lesters in the queue. The child is a victim for as long as they have value on
the market, and then they're found dead in a ditch somewhere.

> When I read that we should fight child porn, it means that we should give up
> our freedom and our democracy. Choose your fight.

You're going to have a hard time finding popular support for the notion that
freedom protects your right to sexually exploit underage girls.

~~~
peteey
>freedom protects your right to sexually exploit underage girls

That's not what he said or implied at all

------
ocdtrekkie
It isn't a popular statement, but I'm super excited about this, and if
anything, this didn't go far enough. Section 230 needs to be removed in it's
entirety. As Matt Stoller from the Open Markets Institute put it last night,
this is the first time that big tech has ever really lost in Congress.

One example that stuck out to me recently was Google's participation in the
drug rehab scam market. The Verge called them out on it repeatedly, and Google
finally stopped doing it. [https://www.theverge.com/2017/9/7/16257412/rehabs-
near-me-go...](https://www.theverge.com/2017/9/7/16257412/rehabs-near-me-
google-search-scam-florida-treatment-centers)

As noted in the article, Google was making as much as $230 _per click_. While
they knew a lot of the ads they were selling were scams, the market was
extremely lucrative for them, they were bringing in hundreds of millions of
dollars with it. They even had marketers specifically catering to building the
rehab ad market.

Thanks to Section 230, Google can't be held responsible for scams that they
knowingly continued to support and fostered the growth of... and made hundreds
of millions of dollars from. Even though Google's pulled the drug rehab ads
now, all that profit is still theirs to keep, even though it should really go
to some sort of victim's compensation fund.

Tech companies have shown repeatedly they can't be trusted with blanket
immunity from prosecution, and it's time to take it away.

~~~
devnill
Should gun manufacturers be liable for shootings? Car manufacturers for hit
and runs? What about the USPS for when people ship drugs or other illegal
contraband?

This seems like an awfully slippery slope where companies are are not only
responsible for their own actions, but also for the actions of their customers
as well.

~~~
ocdtrekkie
If gun owners are actively advertising to people they perceive to be likely
mass shooters: Yes.

There's just so much here. They actively encouraged the practice, they made
hundreds of millions of dollars on it, and the perverse incentive of a bidding
war caused by all these scammers mean that despite knowing about the problem,
Google had no desire to fix it.

~~~
adventured
> If gun owners are actively advertising to people they perceive to be likely
> mass shooters

That's an extraordinarily absurd setup legally. How do you perceive someone to
be a _likely_ mass shooter exactly? What the hell is likely? Perceive what?
Your entire concept is legally broken top to bottom, it would never stand up
to a challenge.

And how do you define that they're specifically advertising to that person?

So: first, you have to magically perceive that someone is "likely" to be a
mass shooter. Then the company has to be caught having identified someone as a
likely mass shooter. Then the company has to intentionally advertise to them.
Then it has to be shown that they intentionally advertised to them. Beyond
being a non-functioning legal premise, in the best case scenario you just
narrowed the risk for the gun maker down to zero.

~~~
ocdtrekkie
That is my point, that the parent of my comment was not making a really
comparable example to the one I was giving of Google's actions and how Section
230 absolves them of responsibility they truly should share in.

------
showerst
Here's the bill: [https://www.congress.gov/bill/115th-congress/house-
bill/1865](https://www.congress.gov/bill/115th-congress/house-bill/1865)

The current version seems to be narrowly written to only apply to sex
trafficking.

~~~
rayiner
It's narrow in the sense that it only applies to sex trafficking. It's not
narrow at all in terms of the relationship between your online service and sex
trafficking. From your link:

"(Sec. 5) The bill amends the federal criminal code to define a phrase related
to the prohibition on sex trafficking. Currently, it a crime to knowingly
benefit from participation in a venture that engages in sex trafficking. This
bill defines "participation in a venture" to mean knowingly assisting,
supporting, or _facilitating a sex trafficking violation_."

It "facilitates" sex trafficking to be able to use gmail and Google Maps to
conduct sex trafficking activities.

~~~
jstarfish
You're leaving out "knowingly," which is an operative word there.

If Google puts out a product offering called "Gmail for Pimps" or a maps
overlay called "Where My Bitches At?" then they might be complicit in
something. Until then, they are afforded deniability.

~~~
rayiner
I'm not leaving out "knowingly." Google "knows" that its services are used to
do all sorts of unsavory things. You have to assume that Gmail and Gchat have
been used to arrange murders.

Your examples cross the line from "knowing" to "intent." They show not only
knowledge that products are used for illegal activities, but _intention_ to
encourage and profit from that illegal activity. Releasing "Gmail for Pimps"
would suggest specific intent to profit from prostitution, rather than just
"knowing" that Gmail is being used for prostitution.

"Knowing" and "intent" are terms of art in criminal law, and "knowing" is well
understood as being a _lower standard_ than "intent." The law uses "knowing"
on purpose.

~~~
slededit
That is a much broader reading then is used elsewhere. In general specific
knowledge is required.

> The word “knowingly” in law means consciously or with knowledge or complete
> understanding of the facts or circumstances.

[https://definitions.uslegal.com/k/knowingly/](https://definitions.uslegal.com/k/knowingly/)

------
ianamartin
I fully expect various hacker groups to have a field day with this after it
goes into effect. It will be a whole new world of swatting. Find someone you
don't like online, crack their website, place offensive material on it, call
the internet police.

Worse yet, government agencies just gained a new tool to take down and ruin
any technology individual or technology company they don't happen to like even
easier than ever before.

The concept of competence as a politician has come up now as a talking point
for the first time I can remember in a sustained way. And I think there's
plenty of room to talk about someone besides Trump in that light. This bill is
written so unbelievably poorly that no one knows what it means. At least not
the people who wrote it and support it. Everyone pushing for it has a
different take on what the standard of knowledge means and what the intent of
the bill is.

This bill is either intended to be misused in the worst possible ways (in
which case, the people pushing it are bad actors and lying about what they
want it to accomplish) or they are utterly incapable of writing effective
legislation--they are incompetent.

I'm going to laugh my ass off if these corrupt politicians start using the law
against each other and hiring people to fuck up rival's websites and tie them
up in criminal proceedings.

I certainly wouldn't shed any tears if Paul Ryan suddenly found himself in
front of a jury arguing that he didn't knowingly facilitate child porn on his
congressional website just because it was sitting there unnoticed for 6
months.

------
zaroth
My understanding is that documented evidence exists that Backpage.com directly
intervened and edited “user postings” which were flagged as potentially
underage, to make them less obviously illegal. And that their direct knowledge
and moderation of the postings makes the Section 230 liability moot.

So why is someone like NPR which certainly should know better raising the
specter of Section 230 protecting abetters of child sex trafficking when in
fact it does not?

I expect a much more reasoned argument from “unbiased media sources” for a
proposal to change a law which is universally regarded as having ushered in
the modern internet.

In the case of Backpage.com, if anything it was allowed to exist all the
better to be able to track and analyze the data in the open rather than have
it move to a modern dark-web platform which would be much more difficult to
track.

Since _all_ technology can be used for good or evil in equal proportion, it’s
clear the best technology can also be used for the worst evil. The most
private, distributed, and secure social network would be at once a boon for
law abiding and law breaking citizens alike. You can’t make the tool work for
one and not the other, without compromise. The legal standard for years has
been if you can demonstrate sufficient legal use of a tool and that you
haven’t intentionally solicited illegal uses then it passes muster. I am
greatly concerned by any legislation which shifts the balance because great
tech will always be used by bad actors.

I.e. Since the Bitcoin blockchain can be used to pass messages between parties
anonymously then anyone running a node on the network could be supporting
anonymous message passing for any purpose, obviously including underage
prostitution. That doesn’t mean you shut down Bitcoin.

The government would love to make it illegal for any technology to exist which
doesn’t provide them the means to inspect it and control it. But providing
those same means would deeply compromise any attempt to implement a truly
private and secure distributed network. I worry that the 1st amendment could
be compromised to allow for such a law.

------
sqdbps
It's not just a shield for Facebook and Google it's a shield for every website
and app out there,and it's the greatest facilitator of free speech online.

Not only did the headline conveniently omit that fact but the whole pieces was
edited to make it seem like only zealots and anarchists have any interest in
preserving section 230.

Senator Wyden who voted against SESTA was trying to convey that this change is
unwise and short sighted and will actually hurt the efforts to combat human
trafficking yet only his criticism of tech firms survived the edit.

It's a great irony that the press keeps calling for limits on speech online
perhaps hoping that when everyone else is silenced theirs will be the only
voice heard.

------
ikeboy
>Congress should revisit the law, he says, and "make the statute longer and
make it crystal clear."

>Cox draws this distinction of websites like Backpage — involved or connected
with their content — and sites that are "pure intermediaries." He wouldn't say
whether that term applied to Facebook or Google

How can you write both sentences with a straight face? "I think the law should
be more transparent but I won't tell you what it will mean"

------
Communitivity
This bill worries me greatly. INAL, but could one interpretation allow the US
government to go after anyone running technology supporting the BitCoin
blockchain, if BTC is used by hackers, drug dealers, etc., along with the many
legitimate uses?

~~~
coldacid
Yes.

------
walterbell
How will Section 230 changes affect Bitcoin’s blockchain?

[https://gizmodo.com/child-pornography-that-researchers-
found...](https://gizmodo.com/child-pornography-that-researchers-found-in-the-
blockch-1823927566)

 _" The researchers write, “our analysis shows that certain content, e.g.,
illegal pornography, can render the mere possession of a blockchain illegal.”
... As the researchers note, “Since all blockchain data is downloaded and
persistently stored by users, they are liable for any objectionable content
added to the blockchain by others,” which is likely true under many countries’
laws. The researchers continue, “Consequently, it would be illegal to
participate in a blockchain-based system as soon as it contains illegal
content.”_

------
jokoon
It's weird how some bits of data can be made illegal. I understand that having
child pornography on one's computer should be forbidden because it encourage
its distribution, but it's clear that the concept of data is difficult to
define.

Intellectual property laws are already difficult to enforce, but the whole
concept of forbidden data because it's illegitimate shows that technology is
really creating problems for the law.

~~~
mkirklions
The true intent is to make it usable against political enemies.

~~~
jessaustin
Yeah the only real way to avoid this charge is to never possess a computing
device.

------
olivermarks
Rana Faroohar has been writing good commentary on this topic and big tech's
broader problems in the Financial Times

From December last year 'Why Big Tech wants to keep the net neutral' \- good
on explaining tensions between net neutrality and section 230

[https://www.ft.com/content/a06bedd2-e1ae-11e7-8f9f-de1c2175f...](https://www.ft.com/content/a06bedd2-e1ae-11e7-8f9f-de1c2175f5ce)

------
intrasight
Make me think of my days as a landlord when the government started making laws
to persecute landlords for drug dealing going on in their properties. Like
those failed laws, this one just doesn't pass the smell test. Even Google,
with their awesome AI, can't police their platform. And why should they? We
pay the police to be the police.

------
owly
When I was a sysadmin, I had several discoveries of incidents of employees
saving and sharing child pornography. Luckily caught them due to an embedded
virus in content. Note: CAN’T UNSEE!! I can’t imagine the guilt if I did not
report them to the authorities and supply evidence to the police. Honestly,
I’d have felt like I “knowingly facilitated” their actions since I managed the
corporate network. Websites like backpage know what they’re doing and should
fucking burn.

------
coldacid
The companies the least at risk from the Section 230 changes are the ones that
need the most government oversight. I applaud the excuse for amending 230, but
both the real reasons and the actual amendment themselves are no good at all.

------
sharemywin
Don't kid yourself it's the small guy just starting out that's screwed. Not
the global giants with armies of lawyers.

In fact wonder if HN is facilitating with it's current moderation policies.

------
Rebelgecko
It looks like this is why Craigslist deleted their personals section. I wonder
if some dating sites are going to go down completely?

------
wtfstatists
Why is state outsourcing the job they are getting paid taxes for and expecting
private sector to do it for free ?

------
Sephr
I wonder if security vulnerabilities will be found in the resultant eventual
legally-required filter software…

------
temuze
This is a pretty awkward headline. For a moment, I thought Google was "A Key
Legal Shield for Facebook".

~~~
joemi
It's a newspaper-style headline. I'm not really sure why NPR decided to title
it that way on the web, though.

------
ideasman
I know this would never happen, but if google really wanted to fight this they
could shut down gmail for everyone indefinitely while they scanned all the
email for evidence of human trafficking. Maybe someone can think of a solution
along these lines that would similarly grab public attention but be more
realistically something google bosses might sign off on.

------
elorant
Why do they mention Google on the title? Google doesn't rely on content. It's
sites like Reddit that will take a big hit. As for Facebook, you can always
report a user.

~~~
jkaplowitz
YouTube, a Google subsidiary, very much relies on content and has been saved
many times by both Section 230 (against defamation claims) and the DMCA's safe
harbor provisions (against copyright infringement contributory liability
claims).

Note: while I worked for Google in the past, I had no involvement with
anything I mention in this comment and am not speaking for them here.

