Section
230 of the Communications Decency Act of 1996 is widely credited with helping free
expression flourish online. With limited
exceptions, internet service providers, social networking sites, and other
online intermediaries are protected under Section 230 against state civil and
criminal claims for the third-party content they host. This immunity has allowed intermediaries to publish
enormous volumes of speech. Yet in so
doing, it has arguably shaped the development of the public sphere in
problematic ways—subsidizing digital platforms over analog ones, rewarding reliance
on user-generated rather than employee-generated content, and allowing website
operators to avoid internalizing many of the social costs of the materials they
disseminate. Without the expansive
immunity granted by Section 230, the internet might not have become the
remarkably rich discursive domain that it is today. It also might not be quite so saturated with
racist, misogynistic, defamatory, fraudulent, and otherwise harmful speech.
That,
at least, is the premise of Olivier Sylvain’s new paper on “Discriminatory
Designs on User Data.” Sylvain
worries that Section 230 doctrine has drifted away from the goal of encouraging
intermediaries to clean up the tortious and discriminatory content on their
sites, and that the human costs of this immunity regime have been borne
disproportionately by women and by racial and ethnic minorities who are subject
to myriad forms of online mistreatment and abuse. Sylvain calls attention, in particular, to
the ways in which intermediaries’ interface design features may enable or
elicit such behaviors. Airbnb’s
requirement that users share racially suggestive profile information, for
example, resulted in widespread racial discrimination by its hosts. Civil rights groups have alleged that
Facebook’s marketing categories allow advertisers to exclude protected groups
in contravention of fair housing statutes.
Although
he does not go into detail, Sylvain suggests that intermediaries that knowingly
or negligently facilitate the distribution of unlawful content should not
benefit from Section 230 immunity, at least when violations of civil rights
laws are at issue. Critics of this
proposal will worry about chilling effects on lawful speech. But Sylvain maintains that the status quo already chills lawful speech—the speech
of members of vulnerable groups—and that a more nuanced approach to
intermediary liability could bring internet law into greater harmony with
anti-discrimination norms while increasing the vitality and diversity of online
expression. One way to read Sylvain’s
paper, then, is as a brief against the fatalistic claim that intermediary
immunity simply cannot be reined in without destroying the dynamism of the
internet.
Sylvain’s
argument will evoke, for many readers, the pioneering work of Danielle Citron
highlighting law’s complicity in the proliferation of hateful and illicit internet
speech, from cyberbullying to revenge pornography. Responding to Sylvain’s paper, Citron embraces
his critique of current doctrine and his contention that “platforms should not
enjoy immunity from liability for their architectural choices that violate
anti-discrimination laws.” Although she
agrees with Sylvain that Section 230 can be read in this way, Citron proposes a
statutory revision that would condition intermediaries’ immunity on their
compliance with a reasonable standard of care to prevent or address unlawful
behaviors.
James
Grimmelmann points
out that any intermediary liability rule is likely to be over- or
under-inclusive (or both). Without robust
immunity, intermediaries can be expected to suppress some “good” speech by
third parties; with immunity, they will fail to suppress some “bad”
speech. How to weigh these different
sorts of mistakes, Grimmelmann explains, depends not only on one’s view of
their relative incidence and importance but also on how crisply the categories
can be defined and how accurately and cheaply platforms can distinguish between
the two. The normative question of
whether Section 230 ought to be reformed cannot be divorced from these
practical and empirical questions about how any reform would play out.
Daphne
Keller sounds
an additional note of caution. While
sympathizing with Sylvain’s distress about the prevalence of online
discrimination, Keller questions whether Section 230 is really an important
contributing factor to many of its manifestations. Moreover, in situations where Section 230
does seem to license invidious discrimination, Keller draws on adjacent bodies
of law to question the wisdom of tying intermediary liability to the absence of
“neutrality” or to a knowledge-based standard.
Keller
concludes with an appeal for morally motivated yet legally and institutionally
grounded deliberation about the troubling developments that Sylvain
describes. This collection of essays
models such deliberation and hopefully will prompt more of it.