You are here: /commentary/section-230-of-us-code-title-47-chapter-5/2020-06-02
"Today, I am signing an Executive Order to protect and uphold the free speech and rights of the American people." pic.twitter.com/agTIJ2KR6C
The White House (@WhiteHouse) May 28, 2020
US Code Title 47, Chapter 5, Section 230 allows an information content provider to do the following without liability according to paragraph (c):
For the most part, these provisions do not apply to Twitter or to Facebook as they are clearly publishers and broadcasters and serve no other purpose than to allow the general public, which includes the press, to publish and broadcast their own copyrighted content on their platforms.
The intent of Section 230 was to encourage interactive computer service providers and information content providers to develop parental controls and to allow integration into their services.
Paragraph (b)(3), (b)(4) and (b)(5) outline important policies for interactive computer service providers and information content providers that fall under section 230 as it pertains to Twitter and Facebook and in examining these paragraphs, Paragraph (c)(1) would apply to Twitter and Facebook however; on both their platforms the user would be the information content provider.
As it pertains to Twitter and Facebook, their "shield" is in regards to:
Nothing in these policy directives give Twitter the right to affect someones reputation, to defame a government official by marking their statements as false, or to flag a government communication as excessively violent.
To reiterate, users have the option to mute or block any users they disagree with and the option to not follow certain users so that their timeline does not include the informative content posted by other users.
The mute and block features are in line with Section 230. Marking a Government Officials communication as false, misleading or excessively violent is not.
Paragraph (b1) and (b2) state these additional policy directives:
Here, Twitter is in violation of these two policy directives with their actions as Twitter has been accused of censorship, information control and discouraging an open and free internet when they began blocking users and kicking them off their platform aggressively in 2017.
Many of the users being kicked off the platform post what is considered adult content and Twitter has two features under the privacy and safety settings of a users profile that allow them to mark their content as adult.
Both of these features, along with the mute, block and option to not follow are compliant with the rest of the policy directives in section 230.
It was envisioned that users of "objectionable content" would have a subscribe form somewhere else and publish or broadcast their content on Twitter and use the "Protect your Tweets" and "Block" function to control access. Many small businesses have already spent a great deal of time, effort and money in implementing this functionality into their business platforms and are compliant with Federal Law and Twitter Terms of Use.
The "contain sensitive media" feature allows adult content creators to post mostly images and video which blocking and filtering services can integrate with to provide parental controls at home and at schools K-12.
Nothing in the Policy Directives gives Twitter the ability to act as a grown adults parents or to steer political conversations towards the philosophy of their executives, employees, staff, investors or shareholders.
Twitter has been accused of violating the the tenets of free speech by censoring users, kicking them off the platform for content another user finds objectionable and now for flagging two different Government Officials communications for public review. President Donald Trump's Tweet on Mail-In Ballots was marked as false and misleading.
I personally support mail-in ballots sent as certified mail through USPS and President Donald Trump does not support the mass use of mail in ballots. However, marking his post as false and misleading without any quantifiable data is a violation of various federal laws and international treaties including defamation, creating derivative works of copyrighted content and interfering with federal communications as a start.
The Washington Post actually wrote an article addressing the concerns of President Donald Trump as it pertains to Mail-In Ballots and while it is an excellent post, it does not address the suggestion of using certified USPS mail for mail-in ballots. It provides data from New York Times, Carnegie Corporation of New York, The Ford Foundation, Pew Charitable Trust, American Center for Democracy and Election Management, Charles Stewart III and the National Conference on State Legislatures. The Washington Post Article on Mail-In Ballots also provides data from themselves and ABC News as well as newer and lesser known publications such as Politico and five38.
Censoring government communications is not covered by the Civil Liability Clause of Section 230.
There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed. The Governor of California is sending Ballots to millions of people, anyone.....
Donald J. Trump (@realDonaldTrump) May 26, 2020
....These THUGS are dishonoring the memory of George Floyd, and I wont let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!
Donald J. Trump (@realDonaldTrump) May 29, 2020
Now that we clearly see Antifa as terrorists, can we hunt them down like we do those in the Middle East?
Matt Gaetz (@mattgaetz) June 1, 2020
Paragraph (c)(2) "shields" Twitter from censoring content even if it is constitutionally protected only if it is done in good faith. In the context of section 230, Twitter would have to reasonably believe that the content met one of the following criteria:
If Twitter in Good Faith believes the user has committed one of these offenses then it has no civil liability in blocking or restricting content on a site wide level.
For harassment and stalking, Twitter should use the FBI's IC3 form and provide usernames and registration data. It should also ideally use the IC3 form after a user has made a complaint about another user in order to respect the FBI due process requirements.
The Liability "Shield" does not apply to interfering with a federal investigation, tampering with evidence, restricting free speech or to damaging the vibrant and competitive free market of the Internet.
Twitter knows this and has a public-interest exception in its employee handbook for user policies that it published online for everyone to read.
https://help.twitter.com/en/rules-and-policies/public-interest
Paragraph (d) of section 230 states that an interactive computer service provider is obligated to notify the user of parental control protections that may assist the user in limiting access to material that is harmful to minors and available on their platform. The interactive computer service provider is obligated to provide a list of blocking and filtering services or software that are compatible with its platform.
Note: built in nanny controls for the entire user base by Twitter data center staff is not one of the approved options as it would violate rules on monopolies and anti-trust laws.
Twitter can be enforced upon and face criminal liability for any of the exclusions because a Civil Liability "Shield" is not a Criminal Liability "Shield".
The criminal liability that Twitter is subject to as a result of mismanagement of its platform which received Federal Funding and is a Publicly Traded Company include:
In claiming Section 230 protections, Twitter is also self-identifying as a common carrier and is liable for violating and required to comply with the same regulation that governs common carriers such as television signal providers, radio antenna operators and satellite feed operators.