Ready Player 230 (Georgetown Law)

A lecture about #Section230 and Video Game law by @jess_miers

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Ready Player 230 (Georgetown Law)

A lecture about #Section230 and Video Game law by @jess_miers


What is Section 230? What is content moderation? Should gamers care? Find out here.

social media, internet, law, copyright, moderation, section230, USA, games

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

01

03

02

04

05

07

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

06

The Moderator’s Dilemma

01

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?

02

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

03

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?

04

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

05

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?

06

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?

[email protected]

Twitter: @jess_miers

Reach out!

Ready Player 230 (Georgetown Law)
Info
Tags Social media, Internet, Law, Copyright, Moderation, Section230, USA, Games
Type Google Slide
Published 09/09/2022, 08:12:26

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