Now that there is concrete evidence that moderators are exempting people from the rules - aka selectively enforcing their own TOS/AUP - does that change their standing and protections?
No. All that s.230 does is declare that platforms are not the 'publisher or speaker' of content provided by another 'information content provider'. It isn't a common carrier provision, so platforms are allowed to make whatever decisions they like about which people they're willing to host, or what TOS/AUP they want to enforce.
For such a simple provision, it's astonishing how many people are writing bad (and sometimes bad-faith) takes on what it means. [Edit:] It's actually absolutely as straightforward as it appears. Which is not to say that it couldn't be changed (and there are reasonable arguments both ways) but confusing what is and what ought to be is a hugely annoying feature of many armchair legal analysts.
> confusing what is and what ought to be is a hugely annoying feature of many armchair legal analysts
To be fair, the delusion is shared by many, including law itself. If "what ought to be" was the same as "what is," then what form of law would be needed?
In what sense is Facebook not a publisher? Their algorithm acts as an editor, choosing what to show me. If they had a simple chronological feed, then the platform argument would make sense.
If the NYT created a service where the articles I see were selected algorithmically, would they suddenly not be a publisher?
The "publisher" versus "platform" distinction is 100% a made-up distinction to motivate bad §230 takes.
What §230 does, very simply, is say that websites posting user-generated content are not liable for that content, even if they moderate the content. It was passed in response to a pair of court decisions that concluded that a website that moderated content (including, for example, weeding out profanity or pornography) was liable for all content posted, and a website that provided no moderation whatsoever wasn't liable.
I finally looked up the actual text of §230 and it says this:
> No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
So I guess the NYT would be responsible for articles they generate but I suppose they would get a pass for anything they re-publish (like from a wire service).
> So I guess the NYT would be responsible for articles they generate but I suppose they would get a pass for anything they re-publish (like from a wire service).
Exactly. Though, interestingly, the second part of your statement is only true for the online edition. For NYT-on-paper, they're liable for all of it. The same with the comments section: online, it's covered by s.230; offline, the 'letters to the editor' section in print is the responsibility of the paper.
Because s.230 expressly provides for them not to be treated as one. The worry at the time was that information services making editorial decisions (taking down harmful content, in particular) would be treated as publishers, and so liable for what was left up. That creates an obvious moral hazard problem, encouraging bulletin boards and web hosts to refuse to even look at what's being posted, to avoid liability. So s.230 was added to the Communications Decency Act to make clear that the legal responsibility would fall only on those originally providing the information.
This situation isn't mirrored outside the US, FWIW. IIRC England & Wales will impose liability for libels etc., but only if the host had actual or constructive knowledge of the content of the post and chose to let it stay up. That introduces quite a lot of legal uncertainty and a bias towards deleting controversial material but may be better overall. I don't really know.
Many discussions are explicitly about what S230 ought to be though, not what it is. Most discussions I've seen start out by stating it was made for a 1996 bulletin board and is dated. It's long overdue to handle this blanket immunity that's being abused by social media behemoths.
You don't have to be a lawyer to know something is a bad law and something is being abused.
Sure. And people writing 's.230 allows Facebook to have its cake and eat it, by allowing them to control their content and yet have immunity from responsibility for that which they choose to leave up' have a point. But there's an awful lot of people arguing that this or that moderation decision means that Facebook 'have now moved from being a platform to a publisher' and should be sued. Normally when Facebook have taken down something the commentator agrees with, or have left up something they think is harmful.
s.230 has no platform/publisher trade-off. If you're an intermediary and not the original information provider you are expressly not the speaker or publisher, irrespective of your editorial choices. That's the whole point of the provision. And it's really straightforward. A lot of people seem to want to muddy the waters, and they shouldn't.
As written, nothing changes with this not-revelation, revelation with respect to Section 230. It does recolor some of their statements about consistent treatment and enforcement but those are other matters.
I have some theories but was hoping someone better informed than me would comment so I could learn more first and come to a more thoughtful position even if it's "not applicable".
But hey, your easily googlable link is useful too.
The distinction lies in whether the service provider has rendered themselves a "publisher" under 230. The protection has historically been broadly interpreted but, in theory, Facebook could lose the protection if it chose, selectively, what content to promote or remove in violation of its own public TOS. Generally:
You have case law for this claim? Or hell, I'll take a quote from your "source" you think supports it.
(that's a trick question: No such case exists. What you say is not the law -- for anyone interested in a more-entertaining version summarizing the state of the law in this area than court decisions and statues, check out https://www.techdirt.com/articles/20200531/23325444617/hello...)
From a discussion of case history provided by your helpful link:
"Generally, courts have said that a service’s ability to control the content that others post on its website is not enough, in and of itself, to make the service provider a content developer."
Now that there is concrete evidence that moderators are exempting people from the rules - aka selectively enforcing their own TOS/AUP - does that change their standing and protections?