An Overview of Section 230 & What it Means For Gamers
Ready Player 230
@jess_miers | Scholarship: https://ctrlaltdissent.com/section-230-work/
Resource: My Section 230 Flickr Album
What is Section 230?
An overview of the law that created the Internet
The Moderator’s Dilemma
A brief discussion about frameworks for liability
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What is Content Moderation?
How websites, users, and developers manage user generated content
Why Should Gamers Care?
How Section 230 and content moderation impact the gaming industry
What the Future Holds
Gaming world topics Section 230 has yet to cover
FOSTA / SESTA
The Backpage Backstory
The Current State of Section 230
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The Moderator’s Dilemma
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Where it all began…
The Moderator’s Dilemma
Distributor Liability
newspapers / bookstores
The Internet
???
Common Carrier Liability
Telephone companies / railroads / Internet Access Providers (Net Neutrality)
Cubby v. CompuServe
1991
Stratton Oakmont v. Prodigy
1995
Section 230 Enacted
February 1996
Zeran v. AOL
April 1996
Reno v. ACLU
1997
UGC Boom
2000’s
What is Section 230?
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The twenty six words that created the Internet...
Websites (and users) are not liable for third party content
Defendant is the provider of user of an interactive computer service
Plaintiff’s claim treats the defendant as a publisher or speaker
Plaintiff’s claim is based on third party content
Section 230(c)(1) Three Part Test (Zeran v. AOL)
Resource: Zeran v. America Online Ebook
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;
Section 230(c)(2)(A): Catch-all (Barnes v. Yahoo! / Fyk v. Facebook)
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
Section 230(c)(2)(B): Filtering
Federal Criminal Law
Federal Intellectual Property Law
ECPA
Sex Trafficking (FOSTA/SESTA)
Common Law Exception: “Materially contribute” to content (Fair Housing Council of San Fernando Valley v. Roommates.com). Note: products liability might be an emerging exception.
Section 230(e): Exceptions
Speech Enhancing Fast Lane (early dismissals)
National and reliable standard/guarantee
Consistent interpretation and enforcement
Procedural Benefits
Resource: Why Section 230 Is Better Than The First Amendment
FOSTA / SESTA
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The backstory of Backpage…
The Backpage Backstory
Backpage became a hub for commercial sex advertising ($$);
Some commercial sex ads actually promoted sex trafficking;
As a result, Backpage faced several lawsuits
They ultimately won those suits on 1A and 230 grounds for the most part;
So, regulators panicked
2015: Congress enacts SAVE Act (Stop Advertising Victims of Exploitation Act) → Backpage fails post-enactment challenge (Backpage v. Lynch)
No crime is ever prosecuted under SAVE (???)
2017: House enacts Fight Online Sex Trafficking Act (FOSTA);
2017: Senate enacts Stop Enabling Sex Traffickers Act (SESTA);
2018: FOSTA / SESTA are combined → signed by Trump;
Resource: Inside Backpage.com’s Vicious Battle with the Feds
What FOSTA Did
Created a new federal crime (2421A) for anyone who owns, manages, or operates an interactive computer service...with intent to promote or facilitate prostitution;
Expanded existing crime (1591) to include knowingly assisting, supporting or facilitating sex trafficking;
Added a carveout to Section 230 for state prosecutions of 1591 and 2421A + civil causes of action for 1591 (but not 2421A?);
But 230(c)(2)(A) good faith removals still apply (????)
Resource: The Complicated Story of FOSTA and Section 230
What FOSTA Didn’t Do
Take down Backpage…
Prior to FOSTA’s enactment, the FBI raided Backpage, seized its assets, and took down the site.
Two separate courts also held 230 did not prevent victims from relief (already guaranteed by pre-existing 1591).
The Aftermath
Internet co’s were left with few options:
Moderate perfectly, turn a blind eye, or exit
Craigslist / Tumblr removed personals and adult content;
Payment processors get nervous (re: OnlyFans)
Arrests for sex trafficking have decreased while arrests for prostitution have increased;
Increased violence (and discrimination) against sex workers;
Queer erasure and online communities dismantled;
No successful civil claims have yet to be brought under FOSTA*
*but see Doe v. Twitter and In re Facebook in Texas…TBD
Resource: GAO Report: Sex Trafficking: Online Platforms and Federal Prosecutions
Gov accountability office
What Is Content Moderation?
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The sword and the shield
Content Moderation
The Sword
Section 230 empowers websites to use their “swords” to restrict content (and users) that violate their rules and community guidelines. Today, websites regularly rely on Section 230 to improve their services. The major social media events that took place on January 6 to curb the Capitol Riots are important examples of websites relying on their moderation swords.
Block
Remove
Ban
Mute
Fact Check
Suspend
Resource: Jan 6. Capitol Events: Platform Response
Content Moderation
The Shield
Section 230 also provides an important shield against any frivolous lawsuits that result from websites using their swords. While websites have always enjoyed their First Amendment right to editorial discretion, Section 230 guarantees that right on a motion to dismiss.
Importantly, users also rely on the Section 230 shield when they like, share, and retweet user generated content. Imagine the alternative.
Account termination
False light
Defamation
IIED
Products liability
“Censorship”
Resource: Why can’t Internet companies stop awful content?
Human Reviewers
Content Moderation Engine
Community Guidelines
Human Rights Principles
Local Laws
Automated Detection Systems
Decision
Authoritarian Governments
Resource: Interested in Trust & Safety Careers? Check out the TSPA Job Board!
The Current State of Section 230
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You are here
Political Turmoil
The Left
“Websites aren’t being responsible enough!”
The Right
“Websites are censoring us!”
Regulatory pressure to do something about the Internet
Lack of meaningful transparency around content moderation decisions
Consumer Protection
Relief for victims of online harms (Herrick v. Grindr)
Products liability (online marketplaces) (Oberdorf v. Amazon)
Ad targeting (privacy) and discrimination/bias (civil rights)
Algorithms & Amplification
Child Safety (EARN IT)
Antitrust
“Lawful but Awful” Content
No apparent incentives to moderate awful content
Mis/disinformation, hate speech, violent extremism
Preventing the next “Capitol Riot”
“Censorship”
Reasons Cited For 230 Reform
Resource: Your Problem Is Not With Section 230, But The 1st Amendment
The States Have Entered the Chat
State Legislatures are joining the fight against content moderation
Several states have attempted to get around 230 with their own content moderation bills;
Florida (SB 7072) → must carry + transparency [ENJOINED]
Texas (HB 20) → must carry + transparency [ENJOINED]
UT SB 198 →mandatory transparency [DEAD]
GA, OH, MN, TN → common carriage [TBD]
But doesn’t Section 230 preempt state laws?
Why Should Gamers Care?
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Did You Know: In 2020, 98% of League of Legends players reported that they had been harassed in-game
Resource: League of Legends Survey Reveals Nearly Every Player Has Been Harassed
Game Developers
Code Hosting Platforms (GitHub)
Web Hosts (AWS)
Online Game Distributors (Steam/Epic Games Store/Google Play)
Instant Messaging Services (Discord)
Steaming Services (Twitch/YouTube)
Other Players / Online Communities
230 Protects The Entire Stack
Resource: Internet Immunity and the Freedom to Code
Other players/online communities → Roblox tools for catching grooming + League trying to stop player toxicity
Think about publicity rights/230 and ninth cir.
Plaintiffs sued Google for offering videogames w/loot boxes in the Play Store (Final Fantasy/Dragon Ball Z)
Claim: loot boxes are illegal gambling devices
Section 230 Defense:
Google Play is an ICS
“Section 230 may apply when the published content is an app.”
Google is not liable for third-party apps
Note: the prima facie elements of the claim failed anyway...
Case Study
Coffee v. Google
What the Future Holds
07
The cake is a lie
Augmented Reality & The Metaverse
Applying Section 230 to offline harms: Twitch moderating offline behavior, Oberdorf v. Amazon; Maynard v. Snapchat; Dyroff v. Ultimate Software; Herrick v. Grindr; Marshall’s Locksmith v. Google; Daniel v. Armslist; Doe v. Myspace
How do you moderate the Metaverse?
Gray area w/Products Liability (Oberdorf case)
No case law on augmented reality yet.
Niantic Hypo:
--Is Niantic encouraging users to trespass/engage in illegal activity? (Roommates)
--Are gyms third party created? How involved is Niantic?
--Claims? Doxxing/harassment/negligence in setting up the game?/trespass/privacy
Pokémon Go Hypo
Resource: What can you do when Pokemon Go decides your house is a gym?
Is Niantic encouraging their users to trespass/engage in illegal activity? (Roommates)
Are gyms third party content? How involved is Niantic is the game location layout?
What are the potential claims?
Doxxing
Harassment
Negligence
Trespass
How do online agreements come into play?
What about the First Amendment?
But what about content versus conduct?
Gray area w/Products Liability (Oberdorf case)
No case law on augmented reality yet.
Questions?
miersjessica@gmail.com
Twitter: @jess_miers
Reach out!