Why You Should Care About CDA 230 - Platform Responsibility & Free Speech - Extra Credits

You may have recently heard proposals by US politicians calling for reform on something called Section 230 of the Communications Decency Act. In case you didn't know, Section 230 is commonly referred to as the 26 words that created the internet. So, what does it mean when President Trump signed an executive order in May calling for Section 230 platform immunity to be clarified? And how might these reforms affect the games industry? To once again help us jump through this legal jargon jungle, we've called on our lawyer friends Joe, Rebecca, Andrew, and Aaron at Fenwick and West. And if you've seen some of their other episodes, you already know that standard verbal fine print applies. These are just their opinions presented in animated video essay form, not legal advice, and you should always consult a real-life lawyer if you need help. We've put links to their bios in the description, along with some other useful articles for further reading on this topic. But okay, way back in ye olden times of 1996, only

26% of Congress members even had an email address, much less surfed the net. While some politicians were proposing regulating the internet like TV and radio, Senator Ron Wyden and Congressman Chris Cox recognized that the internet was special. Unlike TV, internet users could publish their own content and interact in real time. Wyden and Cox were worried that government regulations would unleash a swarm of government sensors that would harm the baby internet and ruin what made it special. So, they drafted an amendment which would eventually become the Communications Decency Act as we know it today. CDA 230 has two major parts, 230c1 and c2. C1 provides that with some important exceptions, providers such as YouTube, Gmail, online video games, and even your ISP, and users like you and your friends, generally can't be held liable for what other people publish online. This means that if someone posts something defamatory or inappropriate on Twitter, Twitter won't be held responsible. But it also means that if

you retweet it, you won't be held responsible either. So, you can kind of think of this C1 as a shield. Incoming lawsuit deflected. The other section, C2, provides that so long as a platform acts in good faith, they may, but don't have to, remove content that they find objectionable. And you can kind of think of C2 as a banhammer. Platforms can wax slime with C2 safely, knowing that the posters can't sue them for censorship. Now, Section 230's shield isn't all-powerful. For example, it doesn't provide immunity for platforms whose users violate intellectual property law, such as copyright. More recently, Congress amended Section 230 to make platforms responsible if they facilitate prostitution or sex trafficking. Though whether or not those laws were executed well is its own can of worms we won't get into here. Additionally, one court ruled that when a platform actively induces its users to post illegal content, it also loses its CDA shield. And lastly, the CDA doesn't apply when a platform speaks for itself, editing

users content to fit the platform's viewpoint. So, now that you're familiar with the basic outlines of Section 230, you might be asking, why all the recent attacks? Well, wouldn't you know it, both liberals and conservatives have something to dislike about Section 230. Some liberal commentators think that the big platforms have become complacent with their C1 shield immunity and have allowed hate speech, harassment, stalking, lies, and other horrible things to run rampant. Checking my Twitter feed here, yep, that seems anecdotally correct. Guh. On the other side, some conservative politicians, including President Trump, claim that big online companies are using their C2 ban hammers in bad faith to selectively censor their views. Though granted, the data doesn't really bear out on that, but these days, when has that ever stopped anyone? So, Trump signed an executive order in May of 2020 that directs both the Federal Trade Commission and the Federal Communications Commission to get involved in combating online censorship. Meanwhile, tons of legislative proposals

are floating around to fix 230 ranging from giving Attorney Generals the power to pierce Section 230 shield immunity to creating new government commissions to craft a mandatory internet best practices to taking the shield away entirely unless a platform proves to the US government that its banhammer is politically neutral. Lots of hard air quotes in this episode for obvious reasons. The problem is that many of these proposals engage in the same kind of large-scale content-based speech policing that Wyden and Cox were worried about way back in the '90s. Oh, and having the government sanction what is politically neutral? Can't imagine how that would ever go wrong. But let's bring this back to games. As you may know, the games industry has been grappling for a long time with toxicity as anyone with a passing familiarity with Gamergate can tell you. But all of the proposals that we've seen so far would severely hurt the games industry. A weakened 230 shield could chill game speech by making companies nervous about getting sued for something a player

posts and in response could lead to them disabling comments, chats, and even customizable outfits and usernames. Less talk, less liability, right? Heck, game companies might even decide to reduce all interaction to can't chat. Well played, I guess. On the flip side, game companies rely on their Section 230 banhammer to act against their most toxic players without fear of a lawsuit. And whether or not specific companies are currently using it effectively enough, without this strong banhammer, the worst trolls would go unvanquished and further ruin everyone else's time with the game. Not to mention this could be particularly devastating for smaller developers where a few bad actors can have a massive impact. A small bit of good news is that all of these proposals are still new. They'll need to go through both houses of Congress to become laws, which will take time and is unlikely with the current garbage fire of, you know, most everything. And if any pass, they will almost certainly be challenged as unconstitutional. Now, as for Trump's executive order, it's important to remember that the president

does not enact or even write laws. An executive command might feel scary, but it has no real effect on game companies right now. Nevertheless, pay attention. Even Democratic nominee Joe Biden has gone on record saying he wants to revoke Section 230, albeit to fight misinformation. So, this isn't a debate that's going to disappear anytime soon. Section 230 is central for game developers, both large and small, for building the online community they want for their players, and for protecting their games' unique qualities from those that might ruin the experience. Each community is different, and each has its own rules, and that's okay. That's not a bug of the internet, it's a feature. And if you are a developer, remember that for now anyway, you have the CDA shield and banhammer in your armory. So, please use them responsibly. See you next week, everyone. Legendary patron roll call: Ahmed Ziad Turk, Alicia Bramble, Casey Muscha, Dominic Valenciana, Gunnar Clovis, Kyle Murgatroyd, and Orioles won. Thank you so much.