Hmmm. No. In a "marketplace of ideas," each idea has a price. Some are held dear and others are viewed as worthless. Regardless, each idea is available to you, and to future generations, for consideration. What we see here is not a functioning "marketplace of ideas." Rather, it is the illiberalism of puritan times and other dark ages where certain thoughts and attitudes could not be considered because a faction explicitly removed them from the marketplace.
When reading books like "The Scarlet Letter" way back in my younger days, I always thought of them as being so irrelevant. Unfortunately, I didn't understand they were actually sci-fi novels. My only consolation now is that perhaps a new crop of Americans eventually emerges that views the moral panics of today with as much exasperation and disdain as I viewed the moral panics of the 1600s.
I don't think Big Tech is scared of little old me, the bully, LoL.
My goal isn't to hurt Google/Twitter/YCombinator, but to interject some responsibility.
That responsibility is coming as common law works through systems outside the USA. For instance, consider George Galloway, a far-left UK politician, and his push towards making Google pay for keeping defamatory videos online [1].
Hopefully, once people understand that, to quote the article, "an intrinsic part of freedom of speech is the right to be heard if one thinks one's character has been falsely impugned," the USA will take a serious look at either reforming or, ideally, repealing CDA 230.
1.) A and B are not my proposals; They're case law that has been preempted by C.
2.) Copyright falls under the DMCA, which pretty much follows A's procedures (i.e., a takedown notice model) even though the DMCA is a statutory provision. Why are copyright holders so special?
3.) There is no constitutional right to an ad-based business model. Ad-based models evolved under rules similar to B's, but for newspapers, and B is what should govern said models online (unless someone can demonstrate a successful ad-based model under A).
4.) CDA 230 is the golden goose; hence, it won't be repealed. Everyone gets paid to the detriment of society and the individuals who are denied their day in court.
Ha! Are you trying to defame me by calling me a liar?
I've quoted you twice and paraphrased your argument once by saying that it "seems to be that CDA 230 doesn't matter." Perhaps that was an oversimplification; however, let's be clear, CDA 230 is a stronger litigation shield than the First Amendment. For that reason, it needs to go.
"X is a rapist." (Where X is a private figure for simplification.)
The nuance is as follows:
A) Under Cubby without proactive moderation.
The website is not liable for the above speech. All the website needs to do is remove the offending speech once it is made aware of its defamatory nature, maybe via a court order.
B) Under Stratton with proactive moderation.
The website is making an effort to determine the truthfulness of content. As such, letting a defamatory post go through subjects the website to liability.
C) Under CDA 230.
As per YouTube, "Because we are not in a position to adjudicate the truthfulness of postings, we do not remove video postings due to allegations of defamation." [1]
Option C is the worst. It is akin to letting an oil company pick and choose which spills are worth cleaning up. Websites can remove things they think are defamatory to certain people and leave up other things that are defamatory to others with no repercussions.
Ideally, we would live in a world governed by A and B. In that world, sites could choose between moderation and no moderation and the corresponding legal and financial burdens. What we have right now is a mess that works to the advantage of Big Tech.
You said, "Section 230 is just a way to shortcut litigation." And that, "There would be one case, it would go to the Supreme Court, and would reinforce the key components of Section 230."
One of your sources says: No, that is wrong. CDA 230 is a superset of First Amendment protections. I agree with your source. However, I think these additional protections are a bad idea because they absolve YouTube and the like from certain responsibilities:
"Because we [YouTube] are not in a position to adjudicate the truthfulness of postings, we do not remove video postings due to allegations of defamation." [1]
There is a valley of nuance between Cubby, Inc. v. CompuServe Inc. [1] and Stratton Oakmont, Inc. v. Prodigy Services Co. [2]. All of this nuance was being worked out in the courts via common law principles before Congress short-circuited the process with CDA 230, which turned out to be one of the things that helped facilitate the rise of the Big Tech oligopoly that Congress now decries.
"But Section 230 substantively protects more speech than the First Amendment, and the First Amendment will not adequately backfill any reductions in Section 230’s protections."
— Your source, not mine (not that matters).
Your argument seems to be that CDA 230 doesn't matter, but it is imperative that it not be repealed, which is kind of a nonsensical position.
YouTube and the NYT are fundamentally different businesses BECAUSE of CDA 230.
You're right that YouTube will exist as long as CDA 230 exists. However, if CDA 230 is ever repealed, YouTube will have to change as its business model is not protected by the 1st Amendment but by an act of Congress.
Newspapers do not enjoy CDA 230 protection. They face actual liabilities and carry liability insurance, a cost. Without CDA 230, these liabilities will not disappear for Big Tech by one case going to the Supreme Court in 6 months. We've seen the opposite with the Supreme Court not hearing at least one letter-to-the-editor libel case for newspapers [1].
Finally, It is not guaranteed that Hacker News would cease to exist. It might need liability insurance or change in some other way. All I know is that things would be different and better.
I can address your articles, but they're at odds with one another. More specifically, the Harvard one claims CDA 230 is superfluous, while the Notre Dame one argues it is essential (to the internet as currently structured). I would say the Notre Dame one is correct.
The big flaw is revealed in the Lawfare blog:
"[CDA 230] merely ensures that courts will quickly dismiss lawsuits that would have been dismissed anyway on First Amendment grounds—but with far less hassle, stress and expense. At the scale of the billions of pieces of content posted by users every day, that liability shield is essential to ensure that website owners aren’t forced to abandon their right to moderate content by a tsunami of meritless but costly litigation."
The principle here isn't whether all the cases have merit or not; it is that every individual gets their day in court. That is, it is up to the courts to decide the merit of a case based on fact, which, of course, is case-dependent [1].
Denying individuals access to the courts makes them bear a cost. That cost should, in truth, be borne by Big Tech and subtracted from its profits.
As for Hacker News, it might not survive in its present form should CDA 230 be repealed. That's OK, though. Perhaps it would become PG's blog, and I would have to start my own blog to comment on matters of the day. That's entirely acceptable, and I don't find it hypocritical.
I don't want to compel speech. I want to reattach a cost or liability to YouTube that was removed via state power.
Remember, Stratton Oakmont, Inc. v. Prodigy Services Co. "held that Prodigy was liable as the publisher of the content created by its users because it exercised editorial control over the messages on their bulletin boards in three ways: 1) by posting Content Guidelines for users, 2) by enforcing those guidelines with 'Board Leaders', and 3) by utilizing screening software designed to remove offensive language."
The State removed the above liability via Section 230, which paved the way for YouTube to become the monolith it is today. Reattaching liability to YouTube would force it to choose between an editorial model (Prodigy) or a platform model (CompuServe). It would not get the luxury of the editorial model without paying the corresponding costs of that model. In other words, it would put YouTube on the same playing field as the Washington Post and other traditional news sources.
The point of repealing section 230 is to end YouTube as we know it. Basically, YouTube becomes the Washington Post and can carry fully moderated content that it selects and publishes. YouTube's current business model only exists by legislative fiat. It's time to give power back to the courts and reinstate the precedent of Stratton Oakmont, Inc. v. Prodigy Services Co.
The libertarian stance would be to repeal CDA 230. I don't know any libertarians that prefer statutory law to common law.
"Libertarians share a skepticism of authority and state power, but some libertarians diverge on the scope of their opposition to existing economic and political systems."
Maybe actors should take the same course hunters have to take. I'm not a hunter, but I took one for fun, and the first thing you learn is always to assume a gun is "hot" until you've checked it yourself.
I'm pretty sure someone wouldn't have an unschooled actor operate a motor vehicle. The same thinking should apply when they operate a firearm.
Yes, sure. But the point is that, under certain circumstances, the use of the key can exceed your level of authorization. Possession of the key isn't a get out of jail free card.
If the CFAA doesn't apply to sys admins working at the highest levels of authorization, it seems to be a useless law. Foreign actors can simply hire sys admins to access whatever they want, no need for hacking.
I really do think the court has opened Pandora's box on this one. They should've voided the statute for vagueness if that was the concern. As it stands now, it has to be one of the dumbest laws on the books.
"Mr. Thomas challenged the verdict, arguing that his conduct was not illegal because his IT position provided him full access to the system and empowered him to 'damage' the system by deleting files or taking the system offline. Thus, any acts were not 'without authorization.' The Fifth Circuit rejected this argument, finding that the statute’s prohibition against exceeding authorized access applies to insiders who go beyond the permission granted them in order to cause damage."
Yeah, I don't buy this line of argumentation. Suppose the locked room is an apartment and the person with a key is your landlord. I'm pretty sure he's not authorized to enter and do whatever.
A plain reading of "authorized" means "having official permission or approval." Van Buren might have been "authorized" to access the system but he certainly wasn't "authorized" to access certain data for cash bribes.
I guess I'm at a loss to see this as a "win" for civil liberties, but maybe I'm missing something.
When reading books like "The Scarlet Letter" way back in my younger days, I always thought of them as being so irrelevant. Unfortunately, I didn't understand they were actually sci-fi novels. My only consolation now is that perhaps a new crop of Americans eventually emerges that views the moral panics of today with as much exasperation and disdain as I viewed the moral panics of the 1600s.