Monday, December 10, 2012

Yelp, Wordpress attorneys tell EFF what would happen without (or with a weaker) Section 230

Continuing its coverage of Section 230, Electronic Frontier Foundation today tweeted and and posted interview with Yelp counsel  Aaron Schur,  which can also be reached on a “CDA230 Successes” page. That link also presents  comments by Paul Sieminski , counsel of “Automattic” (it’s spelled with two t’s), owner of Wordpress, which now sponsors over 38 million blogs.  The east access to both is here. The acronym “CDA” refers to the 1996 “Communications Deceny Act”, which was really another section of the 1996 Telecommunications Act, but the “decency” portion was struck down by the Supreme Court in 1997 (as would COPA later).

Both attorneys give similar answers to what might happen were Section 230 to be “repealed” or gutted.  They seem to believe that the sites might still operate, but would have to put in a “safe harbor” system similar to what is used for copyright infringement under the Digital Millennium Copyright Act (DMCA). Of course, that idea presumes that, if Congress were to modify 230, it would even put in a “safe harbor” process for libel and similar torts (like false light in conjunction with invasion of privacy, or even cyberbullying). 

The attorneys do say they take down postings (not necessarily whole accounts or whole blogs) if told to do so by “courts of competent jurisdiction”.  Wordpress also says that most of its defamation takedowns come from overseas, where downstream liability protections are weaker or non-existing.  But they still allow blogging from these countries.

Both attorneys suggest that some censoring must happen when there is insufficient downstream liability protection, and Yelp says that consumers would have much less access to prospective information about substandard contractor (or medical professional) performance.  Before the Internet came along, consumers had to use the Better Business Bureau.

I have thought that blogging and review services could not exist at all without Section 230 protections, and shared web hosting might be much more expensive or harder to get for ordinary people.  

The attorneys also say that they do have terms of service provisions that go beyond the literal requirements of the law. For example, Wordpress does not allow the deliberate publication of identifying personal information (like people’s SSN’s).  They will take down postings that violate TOS when notified. 

Section 230 also protects bloggers who allow comments on their blogs, for liability for what is in the comments, and doesn't seem to be weakened by comment moderation (usually).  I do moderate comments, however, to avoid spam and gratuitous problems, like intentional links to malware.  
On the street, people have talked about downstream liability for years.  I recall a discussion at gay pride in Minneapolis in 2000, at the Libertarian Party booth, when an AOL consultant who said he expected downstream liability to come roaring back as a political issue.  But it has not.  Conservative justices (and the Bush administration) have been more sympathetic to free speech than many expected. 

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