No, Libertarians, We Should NOT Abolish the CDA §230 and DMCA Safe Harbors!

by Stephan Kinsella on December 22, 2020

Or should I say “libertards”?

[Update: see Jeffrey Tucker, Backdoor Censorship through Libel Law; Techdirt Podcast Episode 266: In Defense Of Section 230 & A Decentralized Internet; Walter Block, “A Libertarian Analysis of Suing for Libel,” LewRockwell.com (Sep. 5, 2014)]

It’s understandable conservatives, who have no serious principles about liberty or property rights, want to end the “safe harbors” granted to ISPs and related social media platforms, like Twitter, Facebook, Instagram, Youtube, by §230 of the 1996 Communications Decency Act (CDA) (which has to do with defamation) and the “OCILLA provisions of the 1998 Digital Millennium Copyright Act (DMCA) (which has to do with copyright).¹ This is to be expected. But it’s disheartening when even some libertarians want to do this (e.g., Tom Bell; the late Justin Raimondo).

These laws, signed by Bill Clinton at the dawn of the Internet, prevent platforms from being vicariously liable for tortious conduct (e.g. defamation law) or copyright infringement by their users. They were instrumental in the early flourishing and development of the Internet; Youtube, blogging, etc. would not have been possible without them. See The Court Case that Enabled Today’s Toxic Internet.

Some argue that these laws were premised on the assumption that ISPs and now, social media services, are mere neutral platforms, not “publishers,” and thus they should not be responsible for actions of their users, any more than the telephone company should be liable for criminal actions by individuals when they make phone calls to plan a crime. But now that Facebook, Twitter, et al. have become more woke and are censoring non-progressive speech, they are “acting like publishers” and should be treated like publishers. If the New York Times is potentially liable for libel for publishing an article or letter or ad that defames someone, so should Twitter and Facebook, since they now obviously monitor and edit the content their users post. But removing the §230 and DMCA safe harbors would just be a way of imposing defamation and copyright liability on companies that are now somewhat exempt. Since both defamation and copyright law are utterly unjust and unlibertarian (as Murray Rothbard and Walter Block have shown re defamation; and as I and others have shown re copyright), we should not urge the abolition of these safe harbors. It would be like, instead of abolishing the drug war, advocating that rich white kids suffer the same criminal penalties as the poor do, or instead of advocating an end to the draft, advocating for a universal draft so that it doesn’t disproportionately affect the underclasses. No. Abolish taxes, copyright, the draft, and the drug war for all. Don’t extend it just to reduce inequality.

But the incremental advance of IP law continues. See, e.g., Covid-19 Relief Bill Adds Criminal Copyright Streaming Penalties and IP Imperialism; and The EARN IT Act Violates the Constitution—the EARN It Act seeks to undermine the ability to encrypt data, which will expand IP enforcement and threatens Bitcoin and cryptocurrency.

Some of my comments from previous posts and emails are below.

***

My Facebook post:

Almost nobody understands this arcane stuff–section 230 of the CDA — and the related issues, so they just make it political. Let me try to briefly summarize. (And this is US related, so apologies.)

So in 1995 the Internet starts. The digital-connected age of humanity starts.

But we are encrusted with a host of inconsistent and unjust laws, such as: defamation law, which censors speech, and copyright law, which censors speech. Luckily the US has the First Amendment which has put some limitations on these laws. But there was a concern that the threat of “secondary liability” (vicarious liability) on the part of ISPs (internet service providers, or “platforms,” like, initiallly, America Online, or blogs, or whatever; and, later, Youtube, Facebook, and so on) could severely hamper and impede the nascent Internet world–even kill it in its crib. So by some accidental miracle the morons in Congress and the mendacious Bill Clinton enacted two big federal statutes, which helped promote and shelter the Internet industry from the threat of government defamation and copyright laws: namely, in 1996, they enacted the CDA or communications decency act, which included a “safe harbor,” section 230, which exempted ISPs from liability for defamatory statements that “users” might make. In other words, if AOL or a blog had some random user post a comment or article that defamed someone, then the concern was the ISP or platform would be viewed as. “publisher” and thus vicariously or secondarily liable for the defamatory statement of their… “customer”.

Likewise, the 1998 DMCA, digital millennium copyright act (and both acts, BTW, the CDA and DMCA, are otherwise horrible and unjust) also had a “safe harbor” for copyright liability: that is, if a Facebook or Myspace or Youtube user put up something that infringed copyright, then, the concern was, again, that the ISP or platform would be considered to be a “publisher” and thus “liable” for the copyright infringement of its random user. (Much like the NYTimes could be liable for defamation if it published an article by one of its reporters that defamed someone or infringed copyright–since it’s “the publisher). Without the safe harbors provided by the CDA (for defamation) and DMCA (for copyright) the whole Internet model we know of now, could have be killed in the cradle: Amazon, Youtube, WordPress, blogs, vimeo, twitter, facebook, and so on–would have all been sued into oblivion. All because of unjust state law–defamation and copyright law (plus others, like those aimed at stopping drug or weapons or child porn trafficking…. helloooo anyone remember silk Road? Ross Ulbricht, rotting in jail??) — so the state came in and “rescued” us with their safe harbors. In other words, state laws were a threat to the growth of the Internet; the state came in and relaxed the application of these laws, slightly, enough to permit Google and Facebook and Youtube and blogging and podcasting and social media to emerge, as it has. (I personally think that remaining laws have still hampered and distorted the current face of the Internet, but that’s another story.) And the DMCA safe harbor has led to the phenomonen of Youtube etc. always taking down videos when a robot tells them of a possible copyright violation–because one of the *conditions* of getting the “safe harbor” relief from outrageous copyright vicarious liability, is that you must respond to a “takedown” request. Therefore, Youtube and others take a million videos a day down because of copyright fascist corporations demanding they do so. They must comply to make sure they don’t lose their safe harbor! So of course this has distorted the Internet too. But at least it allowed Youtube etc. to flourish and grow.

[More on the CDA from EFF]

So, by some miracle, Clinton and the hapless Congress accidentally did something right.How this happened needs to be told later. It seems clear that the big interests that it threatened–namely, the industries dependent on copyright–would have fought this harder if they had realized what a threat this was to their models. And now they hate the DMCA and keep lobbying over the years for Congress to cut back the safe harbor. Which would basically make Facebook, Twitter, Youtube, Google, blogs, podcasts that allow user comments–it would make them all “publishers” of whatever content their random, sometimes-anonymous users post, and thus destroy them with copyright and defamation lawsuits. I.e., it would decimate and ruin the Internet.

So here’s the problem. Most people think that these “safe harbors” are some kind of “special privileges” the state is granting to big media companies, ISPs, etc. But in reality,… it’s just the state “refraining from” applying unjust regulations (defamation and copyright law–both of which are totally unjust and should be abolished). So then, because EVERYONE is confused on these issues–defamation and copyright–and they all think they are basically just laws, everyone thinks that the state is sort of giving some kind of subsidy or privilege or unfair “boost” to the social media companies.

Now, there is little doubt that most of these companies are staffed and run by a bunch of left-leaning tech-civil-libertarians, and so they’ve incorporated their SJW and PC standards into their rules and so now they start banning conservatives, “de-platforming” “hate speech” and so on. And so then the right-mainstreamers bitch that these corporations are “out of control” and have “too much power” and are “violating free speech rights” and so why should the FedGov give them “special privileges.” So then Trump says “yeah, they just flagged my own posts on Twitter” so now he signs an executive order to consider having the Feds give more scrutitny to the CDA “safe harbor” “privileges.” Conservatives are in favor, because they sense the left bias among the glassy-eyed SJW-indoctrinated clueless San Francisco tech-libertarian moguls, and because they have no fundamental or principled understanding of the background issues or the CDA or DMCA or copyright or whatever. I suspect liberals are at least as clueless, so they’ll just retreat to their “TRUMP BAD” grunts.

***

My interchange with Tom Bell:

Bell:

Lawrence Wang asked, “If you had the power to pass laws to regulate social media, what would you do?” Hot take:

Get rid of CDA § 230, forcing online publishers to either assume normal common law liability, just like offline ones, or to configure their services so as to not exercise editorial control. This would likely drive the development of a platform the provider of which does not and indeed cannot edit, but which users can tailor to their wishes. The end result: a social medium designed to resist censorship that puts editorial control where it belongs: in the hands of each individual user.

Norman Stephan Kinsella

Congrats, Tom, for finding something we totally disagree on.

I mean… you manage to find one of the few things EFF is actually good on and disagree with them. Hat trick! https://www.eff.org/issues/cda230

First of all, defamation law is unjust, whether it’s derived from the “common law” or not. This is pretty basic libertarian doctrine by now. See Rothbard, Block, etc. https://mises.org/library/knowledge-true-and-false

Second, the platform or ISP should not be liable for defamation (or copyright, for that matter) of their users/subscribers, even if they lean left.

Third of all… well, I think two is enough for now. Good day, Sir! I SAID GOOD DAY

Tom W. Bell

I used to agree with EFF about § 230, too. But then I thought about the issue some more. Try it sometime.

As for defamation, on that point reasonable people can differ. The common law deserves a greater presumption than a couple of *economists* about the question of law, however. And Adam Smith, no piker in the “libertarian economist” category, ranked the right against defamation as more natural than even the right to property . (See his Lectures on Jurisprudence: https://oll.libertyfund.org/…/smith-lectures-on-justice…).

OLL.LIBERTYFUND.ORG

Lectures on Justice, Police, Revenue and Arms (1763) – Online Library of Liberty

Norman Stephan Kinsella

I’ve changed my mind or refined my views on various issues over the years–intellectual property (I am now opposed), anarchy (now for), educational voucher system (now opposed), affirmative action, gay marriage, even abortion and spanking and circumcision, and even on libertarianism (Rand condemns it, remember) and the LP itself (I just joined last year).

Defamation is an issue where I didn’t have a strong opinion but once I understood it, and now that I understand it’s just a species of IP, I became persuaded that it’s utterly illiberal–even if the common law and Adam Smith disagree. I’d take civil libertarian Nat Hentoff’s side against Randian David Kelley on this issue [ https://youtu.be/ge57bIoTXoY ], and I don’t give the common law much of a libertarian presumption. I’ll take reason over the side of tradition and the opinions of state judges, when push comes to shove.

I don’t think there is a good case for defamation law, despite the authority of the common law. (Same thing with blackmail law). I think Rothbard nailed the case for this as have other libertarians. It’s amazing to me that some libertarians still think there can be a good case for such laws. Probably the same or related error that leads some people to favor patent and copyright law, eminent domain and taxes, antitrust law, war, the drug war, and so on. But I’ll try to keep an “open mind” about all these things.

That said, I agree with you that — even if you oppose defamation law, and even if you oppose copyright law –the “safe harbor” exemptions of sec. 230 of the CDA and of the DMCA could be opposed on some grounds. Sort of how some libertarians oppose granting tax exempt status to churches, since it’s “not fair” or whatever, and “distorts” things. I have never agreed with such reasoning, but I kinda get it. To each his own. I’ll stick with the EFF on this for now. But when Biden wins in November, you’ll probably get your victory. Yayy. [https://www.theverge.com/…/joe-biden-president-election… ]

Nat Hentoff and David Kelley on Libel Laws: Pro and Con

Tom W. Bell

Agreed that defamation generally and § 230 in particular merit continued reflection; they are not subjects a thoughtful person can assess at a glance.

Norman Stephan Kinsella

I agree. I do think the case for 230 (and the similar copyright safe harbor in the DMCA) may be exaggerated by the EFF types, but it’s hard to say. One reason is that the US is not the only game in town. I don’t see how exemption in the US from defamation or copyright helps remove a similar threat posed against a youtube or ISP etc., from other countries, since they are online and thus “present” everywhere. The other problem is I believe the CDA itself, and the 230 clause, are unconstitutional since defamation is state law and the feds have no business regulating this. (In fact, if I recall, most of the CDA has already been thrown out as unconstitutional, leaving basically the 230 exemption standing).

I also understand your desire to put companies on an equal footing, but I think there might be *something* to the case EFF makes about how important these safe harbors were to the emergence of our internet institutions, and that removing them might imperil them or other business models. In fact my fear is the Bastiat/Hazlitt one about the seen and the unseen–the fact that the remaining aspects of IP law and other regulations have snuffed out innovations and models that we just have never seen. Sad.

But what I find more intriguing is your more cautious, “deference” approach that you seem to have, e.g. in sort of assuming the common law is the default libertarian set of rules that have a presumption of legitimacy. A few comments here.

1. Why the common law? Why not the Roman/civil law, which is equally as important as a western legal system?

2. even if common law rules are seen as default or presumptively legitimate, esp. when they evolved gradually…. sure, fine. But that doens’t mean the presumption can’t be overcome. I’d concede that rights like trademark and defamation and blackmail emerged in the common law, but even if so, I’d say that we have overcome the presumption of legitimacy they have by our reason–by our more advanced modern understanding of economics (Austrian), by our more radical and consistent political views (libertarian), and the like. We both know Adam Smith was wrong on a lot of things, so … come on. In other words–the chapter by Rothbard on Knowledge, True and False, already has overcome the presumption of validity of defamation law. So I am not sure why you cling to it. I agree that we have to also be careful of excessive rationalism and maybe proceed cautiously. But I think we libertarians have been at this for a good 60 years and at a certain point, it’s okay to adjudge a past law as a bad one, even if it was developed in the common law. Think of Judge Narragansett in the conclusion of Atlas Shrugged taking the Constitution as his starting point (which is a type of IP theft, by the way, according to Rand’s IP views) and crossing out a phrase or word here, amending it here or there. To be honest I have myself thought of taking (say) a modern Civil Code and keeping the “libertarian” parts of it and modifing the other parts–using it as a starting point or template or, as you might say, as a presumption. But honestly the presumption has to be pretty weak.

3. All that said…. you yourself do not oppose copyright or patent. Why not? These did NOT arise on the common law; they are creatures of statute! E.g., the Statute of Monopolies 1623; Statute of Anne 1710; the US Constitution 1789; and the subsequent Patent Act and Copyright Act from 1790 or so. These are all statutes, in derogation of the common law. I realize you have argued for returning to the Founder’s Copyright but this is still statutory. Why in the world does patent and copyright get a presumption of libertarian validity, when they didn’t even emerge from the common law? I could see your clinging to defamation or blackmail or even trademark and trade secret rights, since you could trace some pedigree back to common law decisions; but how in the world can you fit copyright and patent into that mould?

***

From an email exchange last year with a Professor in the Cyber Science Department at the United States Naval Academy:

From: Stephan Kinsella <nskinsella@gmail.com>
Date: Sun, Jun 30, 2019 at 11:08 PM
Subject: Re: query about CDA 230 and DMCA
To: [X]

Thank you so much for your thoughtful reply. This all makes sense. I wonder–do you have any view as to which of copyright, or defamation, before the DMCA and CDA, was a bigger existential threat to the emergence of the Internet? From your book title and focus I would think you might point to defamation as the bigger existential threat, but at least for some types of platforms, like Youtube, it seems to me a case could be made that copyright would have been a threat of similar magnitude to defamation law, if not bigger. Especially because, as you note, without the CDA, a type of notice and takedown system might have emerged naturally, without legislation, for defamation issues (even if it would be more difficult to implement, as you also note), but it’s hard to imagine such a system emerging for copyright without the DMCA since copyright is a legislated system instead of one that emerged from common law like defamation law. I.e. I wonder if a case could be made the it’s the DMCA safe harbor that saved the Internet, at least as much as the CDA.

In any case, thanks for putting your effort into this work. I just got your book on kindle and look forward to reading it.

FYI I’m an IP attorney and also a libertarian writer, and have long opposed all IP law and also defamation law on Austrian-libertarian grounds for some time now. I am frankly amazed Congress enacted the CDA and DMCA safe harbors in the 90s and doubt they would do it now, given the entrenched IP and other interests opposed to these safe harbors; it’s like we have a quasi-free Internet by accident. Reminds me a bit of the Sony case where the entire industry of VHS recorders and thus movie rentals, Hollywood models, etc. turned on a single vote in the Court in the Sony case. The mind wonders what society might be missing right now due to other close calls that went the other way, the effects of which we cannot easily see a la Bastiat’s “the seen and the unseen”.

Best, SK

On Sun, Jun 30, 2019 at 10:37 PM [X] wrote:

Thanks for the email.

I certainly do not intend to treat the DMCA as trivial. The book, however, is about Section 230, which is unique and quite different from the DMCA. Most importantly, the DMCA safe harbor relies on a notice-and-takedown system, which is absent from Section 230 (at least as it has been interpreted by every court since Zeran). The DMCA safe harbor and notice system exists because intellectual property always has been excluded from Section 230‘s protections. In fact, the pre-Section 230 system under the common law and First Amendment rules very well may have resulted in a similar notice-and-takedown based system for non-copyright issues (because under the common law, content distributors are only liable for third-party content if they knew or should have known of it).

The notice-and-takedown system for areas such as defamation would be particularly difficult to implement because it relies on very difficult, fact-intensive judgments about issues such as falsity and actual malice.

That is not to say that the DMCA has not been important to certain sites, particularly such as YouTube. But I think that the scope of the safe harbor — as well as the impact — is simply different from Section 230. That said, there definitely is a great book to be written about DMCA – I haven’t seen that yet.

_______________________________________

[X]

On Sun, Jun 30, 2019 at 11:28 PM Stephan Kinsella <nskinsella@gmail.com> wrote:

Professor [X],

I just heard the [Y] podcast that you were featured …. I have long assumed that the Internet as we know it came about not only because of the CDA‘s defamation safe harbor, but also the DMCA‘s copyright safe harbor, since it seems to me that the threat to Internet platform businesses from copyright was as strong if not stronger than the threat from defamation etc. One can hardly imagine Youtube emerging without the DMCA safe harbors, since the CDA Sec. 230 safe harbor exempts IP. So I have for years bee under the assumption that both the CDA safe harbor from defamation combined with the DMCA copyright safe harbor were together necessary for the emergence of the modern Internet. So I was a bit surprised your book (which I have only begun to skim) seems to only slightly touch on the DMCA. Have you perhaps written elsewhere on the joined effect of CDA sec. 230 and the DMCA‘s safe harbor, re the emergence of the modern Internet, or perhaps is there something obvious I’m missing you could point me to as to why the DMCA‘s safe harbor is treated as somewhat trivial in comparison to the effect of the CDA?

From: Stephan Kinsella <nskinsella@gmail.com>
Date: Mon, Jul 1, 2019 at 12:45 AM
Subject: Re: query about CDA 230 and DMCA
To: [X]

Fascinating. Thanks. This makes a lot of sense. I realized 230 applies to more than just defamation but always assumed that was the primary thing. (As a strong originalist/federalist, I’m skeptical that CDA 230 is even constitutional, but of course this is a very unpopular, minority perspective.)

Of course the DMCA safe harbor has resulted in the takedown process which itself has a chilling effect, but from my copyright-abolitionist point of view, this is simply the result of the DMCA not totally abolishing copyright but instead only partially limiting its effect or application. Copyright without the DMCA safe harbor would have much more severely crippled and distorted Youtube and many other platforms; with the DMCA its crippling effect is reduced, but not eliminated. The takedown process is unfortunate and does cause distortion, but ultimately I blame all this on copyright not on the DMCA‘s response to copyright’s threat to the Internet. The only good solution I can think of for improvement of the takedown system, short of abolishing copyright or radically reducing its scope or term (or reinstating formalities, which would probably violate Berne), would be to impose more severe liability on those who file groundless DMCA complaints. But I don’t see that happening.

I see you have a few other discussions about your book/thesis on other podcasts; I have them queued up too.

On Sun, Jun 30, 2019 at 11:20 PM [X] wrote:

It’s a good question. I think that one thing that is often overlooked (and something I try to stress in the book) is that Section 230 covers far more than defamation. It often applies to a wide range of statutory and common law claims, such as failure to warn of danger. In fact, many if not most of the cases I write about are not defamation. These claims are fact-intensive and incredibly subjective. Section 230 also provides absolute protection against nearly all common law and statutory claims in all 50 states and at the federal level. So while I don’t want to understate the importance of DMCA, I think that the nature of the claims against which Section 230 protects were more threatening to the free and open nature of the Internet.

There also, of course, is the criticism that copyright holders abuse the DMCA takedown process, and that has had a chilling effect. I know that some 230 absolutists point to those abuses when they are arguing to preserve 230.

Interestingly, some of the greatest pushback to Section 230 that I’ve seen has been from the pro-copyright crowd. I find it fascinating, as it does not seem to sway them when they’re reminded that Section 230 has nothing to do with copyright, but DMCA does.