An Overview of Section 230 & What it Means For Gamers
Ready Player 230
@jess_miers | Scholarship: https://ctrlaltdissent.com/section-230-work/
What is Section 230?
An overview of the law that created the Internet
The Moderator’s Dilemma
A brief discussion about frameworks for liability
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The Current State of Section 230
Where are we today?
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
What is Section 230?
01
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)
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
The Moderator’s Dilemma
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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
The Current State of Section 230
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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 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)
Content amplification concerns
Antitrust
“Lawful but Awful” Content
No apparent incentives to moderate awful content
Mis/disinformation, Qanon, hate speech, violent extremism
Preventing the next “Capitol Riot”
Censorship
Factors Driving 230 Reform
Resource: Your Problem Is Not With Section 230, But The 1st Amendment
Section 230 in 2020
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Proposed reforms
Proposed repeals
Consensus on the problems we’re trying to solve
Resource: Section 230 Bill Tracker
Section 230 in 2021
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Senate Bills
(SAFE TECH / See Something, Say Something Online Act)
House Bills
(PCROPC / CASE-IT / Civil Rights Modernization Act of 2021 / Limiting Section 230 to Good Samaritans Act)
Consensus on the problems we’re trying to solve
Resource: Project Disco
What Is Content Moderation?
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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!
Why Should Gamers Care?
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Did You Know: last year 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...
Recent Case Study
Coffee v. Google
What the Future Holds
06
The cake is a lie
Augmented Reality
Applying Section 230 to offline harms: Oberdorf v. Amazon; Maynard v. Snapchat; Dyroff v. Ultimate Software; Herrick v. Grindr; Marshall’s Locksmith v. Google; Daniel v. Armslist; Doe v. Myspace
Resource: Geocache hiding guidelines
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? Twitter: @jess_miers Reach out!