Section 230’s lefty defenders are lawyering up

A Q&A with Elizabeth Banker, the new vice president of legal advocacy at the Democratic-allied tech group Chamber of Progress.

An exterior view of the Supreme Court on a cloudy day.

Cases related to Section 230 are on the rise.

Photo: Geoff Livingston/Getty Images

The Chamber of Progress, a tech trade association led by a former Google policy director and seeking to appeal to Democrats, is hiring its first vice president of legal advocacy. Elizabeth Banker comes to the role from a similar position with the Internet Association, a high-turnover trade group where Google and Facebook are key members. Her main job will be trying to protect the controversial legal shield for websites known as Section 230 as it comes under increasing pressure from lawmakers and in court. And yes, she said, it's possible the chamber itself will be suing, as other tech trade groups recently have.

The provision in question shields sites from being sued over content that third-party users, known in 230-speak as "information content providers," post. Firms say Sec. 230 protects free speech online while allowing companies to moderate the platforms as they see fit. The law is often considered a boon to tech companies, in part because it often leads to lawsuits against them being dismissed quickly.

Many lawmakers on the left, however, look at Big Tech's history of poorly moderating terrorism, civil rights violations, election and health misinformation, mass harassment and other online harms and blame Sec. 230 as a reason companies have failed to do enough.

"Companies are doing a lot, but they're not perfect," Banker said. "There's arguments that they should be perhaps doing more, which we don't necessarily disagree with. But I think the important thing to understand is that Sec. 230 and the First Amendment protect the efforts that companies make today."

Democratic lawmakers' worries are not the only threat. A series of recent court decisions rooted in FOSTA — a carveout to Sec. 230 that sought to increase sites' liability for internet sex trafficking — have forced companies such as Twitter into litigation. Users seeking to sue platforms have also put forward other proposed limits on Sec. 230 with some success. And in recent months, two Republican-led states, Florida and Texas, have attacked companies' moderation abilities by passing laws that effectively require them to keep up right-wing speech. Tech companies and civil liberties groups say those laws violate the First Amendment, and are suing.

"There are a million cases right now to monitor," Banker said, only somewhat hyperbolically.

This interview has been lightly edited and condensed.

Why don't you tell me about what your role's going to be?

Increasingly, it's not enough to protect Sec. 230 just in the policy sphere. It's under a lot of pressure in the courts. And so my role's really going to focus on that, and making sure that courts understand that the First Amendment and Sec. 230 really do protect providers' rights to moderate the content on their sites.

Talk a little bit about your background.

I've been in this space for 25 years — graduated from law school right when 230 was passed. So we've kind of matured together. I've been in-house [counsel for] Twitter and Yahoo. I've worked in law firms advising companies. And then most recently I was in the trade association world at Internet Association.

Day-to-day, what do you think the work will be? Filing lawsuits? Filing amicus briefs? Strategizing with other groups engaged in this stuff?

Well, all of the above. I think the early focus will be participating as an amicus. Obviously, there are cases already underway that are of tremendous interest and concern in terms of the ability of providers to moderate the content on their sites. The Florida content moderation regulation statute has already had a preliminary injunction granted and is now under appeal. We've got the similar Texas law that already has a lawsuit filed. I think those are good examples of the early places we'll focus. But longer term, I think being a plaintiff is certainly an option we would consider.

There's a line of recent rulings [derived from FOSTA] that I've been particularly interested in, including against Twitter, against Pornhub. As I understand it, courts have basically said that these platforms can't claim Sec. 230 protection against lawsuits brought by victims of alleged sex trafficking even when the platforms have pretty low levels of knowledge about, participation in or benefit from any of the alleged trafficking. What do you think of these cases, and how do you see them playing out?

It is really interesting to watch those cases right now. As I'm sure you've noticed, courts have come from conflicting views and in fact there are conflicting views in the same districts, between judges. I think … this is definitely an issue that is going to get a look at from a higher court, just given the amount of confusion that there is.

I'm hesitant to talk about FOSTA, but I think it is important just to stress that when that amendment to Sec. 230 went through, the Senate in particular really emphasized what a high bar the knowledge standard was intended to be — and that this was a very, very narrow carveout to allow civil litigants and prosecutors to go after really bad actors like Backpage. And what we've been seeing is, despite the efforts to construct that very narrowly, courts are still struggling with it. And so I think it's really an important cautionary tale as we talk about further amendments to Sec. 230, about the difficulty of creating something that actually is going to be narrow.

You mentioned higher courts looking at this. Do you think Sec. 230 is headed to the Supreme Court?

Not in the immediate future. I think there are these conflicted decisions on the 230 amendment from FOSTA. Definitely a court of appeals is going to see that soon. Those processes take a long time, so I think that will percolate for a while. Then there's these content regulation statutes. These are far more First Amendment issues than they are 230 issues, [but] because of the level of commitment that governors and state AGs have to those laws, they could very well be filed for … review by the Supreme Court. But honestly, I feel like the legal issues really aren't complex enough that the Supreme Court would want to take one of those up.

Obviously we should say that some of the cases we've been discussing have only gotten to the motion to dismiss stage [when judges have to give a lot of deference to the plaintiffs]. Do you think ultimately there will be verdicts against some of the companies?

One of the things that we've seen is that when providers aren't granted Sec. 230 immunity at the motion-to-dismiss stage, a lot of people assume that means the company is guilty, they are on the hook and they have done something wrong. But if you track the litigation all the way to the end, what you find out is, they weren't liable, there wasn't a violation. [Fair Housing Council of San Fernando Valley v.] Roommates.com is my favorite example of this: Everybody says that Roommates violated the Fair Housing Act, but the Ninth Circuit said it didn't.

There's another track. I think about cases like Doe v. Snapchat [in California]. Basically Snapchat has to go into this lawsuit over whether its "Speed Filter" encouraged two young men to drive too fast, unfortunately in a deadly crash. The judge basically said this filter isn't third-party content, and third-party content of course is the domain of Sec. 230. Do you see more of these, which are essentially product design and liability cases?

We definitely see more of those being filed, but on that specific Snap example, this goes back to my last point about: Is the company actually liable under traditional theories of liability? And in the first one of those "Speed Filter" cases … in Georgia, Snap was granted a motion to dismiss after it lost Sec. 230 [protection], because the court found under traditional theories of liability, they weren't responsible for someone's decision to drive too fast.

Is there another line of cases or sets of interpretations of Sec. 230 that you see as a major battlefront?

There are a lot of cases right now about algorithms and targeting and ad revenue, and those are being raised in the context of what it means to be an "information content provider." Because, as I know you know, if you are an information content provider, you do not benefit from Sec. 230.

Is there a concrete example or a set of facts from a case that illustrates this?

The "material contribution to illegality" test came out from Roommates. In Roommates, it was claimed [the site] violated the fair housing statute because they had a questionnaire that solicited answers — that users had to give – that raised preferences about roommates that could be construed as being a violation of the fair housing laws.

Like, "Would you live with a person of another race or gender?"

Right. And so in that case, the courts said, while users filled out this survey, Roommates designed it to elicit that specific information. Users couldn't have filled it out in a way that avoided that, and so [the site] made a "material contribution to illegality" and therefore they were an information content provider under 230. The idea being that Sec. 230 protects providers for other people's content, not for what they themselves say and create to post online.

So you're seeing a lot of cases where plaintiffs are alleging basically that the platforms got involved in the creation of the content and so Sec. 230 isn't on the table? And the boundaries are being delineated?

Right. Exactly.

Talk about how this all fits in with Chamber of Progress. Obviously it's a Democratic-allied, left-leaning group. Why do you see this work as particularly necessary and as appealing to the left?

I think it's really part and parcel of Chamber of Progress' mission. A big part of that is about promotion of healthy and safe online communities, making sure that services are available and inclusive, widely accessible, to a variety of individuals and communities, and that people have a place to go where they can engage without being bombarded with hate speech and harassment, disinformation. And that's really, I think, where Sec. 230 comes in, because Sec. 230 and the First Amendment are what enable providers to take actions on those types of content to create those healthy environments.

The criticism from the left of Sec. 230 is the 180 of what you're saying, which is that it's the First Amendment that protects hate speech and there's not a lot that we can do about it. But ultimately it's Sec. 230 that sets the rules of the road, sets the incentive structure. And it's getting in the way of the platforms taking down more hate speech, more threats of violence, more misinformation. What do you say to that?

There's no doubt that there are bad actors on platforms, but at the same time, platforms are committed to creating safe environments. It's very difficult to moderate content at scale … What they are doing today really relies on Sec. 230 and the First Amendment, and if you weaken those protections, it doesn't enable them to do more or incentivize them to do more. It actually has the opposite effect of discouraging platforms from taking those actions. Again, once you take Sec. 230 away, we just return to what were the previous laws that would apply to online services. They're not actually going to be liable, particularly if they have no knowledge of what the content is.

Which gives them the incentive to look away, to let horrific content fester?

Right. That just leads us back to the dynamic you just described, called the moderator's dilemma: You want to do the right thing, but you know if you start looking at content to try to remove things, you potentially become liable for all the content.

Any other issues you'll be working on?

I already am tracking more than a hundred cases. We've seen a huge increase, particularly on content-removal cases, in the first half of 2021. There are three times as many as there were in 2017. And obviously state legislators and these content moderation regulation laws are just going to continue to push that. More than a hundred were introduced this year, and we expect the same level of activity next year.

When you said there's been a rise in content-removal cases, that's people suing to have an allegedly libelous statement pulled down?

Actually, it's the opposite. These are people suing providers for having removed their content. People are suing providers for removing their white supremacist content, for removing their vaccine disinformation, for removing their election interference. The list really goes on. So it's that specific type of case we've seen an increase in.

The scenario you're talking about, where providers are being sued for not having removed: That was really, I think, more the prototypical Sec. 230 case we saw until about 2015, 2016, when these content-removal cases started being more common. And we really hadn't seen many of those since the early days of 230, when spammers brought a lot of lawsuits for being blocked by providers for sending spam.

The spammers mostly lost, right?

Yes they did, thank goodness.


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