Jimbo Unilaterally Cashiers WMF's Section 230 Immunity, Declares Course Materials in Applied Ethics "Beyond Scope" Options Rating

[Moulton]

Jimbo's recent intervention in Wikiversity, where he declared various academic lines of inquiry (primarily associated with a course on Applied Ethics) to be "Beyond the Scope" of Wikiversity (and all other WMF-funded projects) is probably a bigger issue for Section 230 Immunity than other arguments.

At the same time that Jimbo publishes an appeal to donors to contribute to WMF's mission of bringing the sum of all human knowledge to 21st Century youth, he declares that a wide swath of educational material on Wikiversity is beyond the remit of the project, and he personally expunges it.

To my mind, that not only abrogates the letter and the spirit of the WMF Mission Statement, it also dispenses with the "hands-off" Section 230 argument that otherwise lawful and traditional educational content is not censored.

Jimbo's recent intervention in Wikiversity, where he declared various academic lines of inquiry (primarily associated with a course on Applied Ethics) to be "Beyond the Scope" of Wikiversity (and all other WMF-funded projects) is probably a bigger issue for Section 230 Immunity than other arguments.

It wasn't the concept of a course on applied ethics that was declared "beyond the scope" of wikiversity, it was the implementation (drawn heavily from your personal disputes).

While it might not have been your intent, can you at least see how someone else looking at it might see your implementation of the course in this way as somewhat self-serving (allowing you to present your adversaries as the "bad guys" in a story supposedly being used in an academic context)?

Jimbo never actually said exactly what was "Beyond Scope", and he failed to answer questions from others who asked him to explain himself.

Superficially, he made reference to "outing" on my talk page. But the only "outing" on that page was a paragraph near the top where SB_Johnny referred to me as "Barry".

But to your point about the case studies...

Originally, the course material on Applied Ethics was all theory, with no examples or exercises. Hillgentleman, who was helping us to structure the course, asked us to provide examples of ethical dilemmas against which the theoretical principles could be applied. Initially, PrivateMusings responded with a "scenario" roughly paralleling his experiences on WP. Hillgentleman said he didn't want synthetic scenarios, but live examples from WP. So several of us wrote up cases as Hillgentleman had requested.

When Tracy Walker took issue with the cases involving her, I invited her to write up her own account and we would both submit our versions to scholarly peer review, accepting and responding to questions from others. Tracy declined to do that, preferring to edit or delete the cases that John Schmidt and I had constructed, based on the evidence.

Time and again, I invited the editors from IDCab to present their versions and submit everything to peer review, in accordance with the principles of scholarly ethics.

Instead, they shredded the project, creating a fresh batch of ethical dilemmas to chew on. Ultimately, Cary and Jimbo issued veiled and not-so-veiled threats to shut WV down. Most of the custodians buckled. Some left the project.

I still call for a scholarly review of the travesty that took place on WV in the wake of the unprecedented intervention of Cary and Jimbo.

At the same time that Jimbo publishes an appeal to donors to contribute to WMF's mission of bringing the sum of all human knowledge to 21st Century youth, he declares that a wide swath of educational material on Wikiversity is beyond the remit of the project, and he personally expunges it.

An excellent point---falling on deaf ears.

Eventually, if things continue as they have, all Wikimedia projects will fall apart, primarily due to declining funding. Wikipedia etc. will end up like Geocities---a vast, Balkanized and almost-invisible digital slum.

That's been predicted for a while now.

But what concerns me more than the plausible prediction of an epic failure of WMF is the fraud that is being perpetrated on the donors and the disservice being delivered to impressionable 21st Century youth who have fallen into the anachronistic culture of the Jimbonic Jackboot Juggernaut as it ambles down the Puerile Pogrom Parade.

More than anything, it grieves me to watch these youngsters fall into reprehensible fascistic practices that ethical pioneers fought so hard to eradicate down through the past 4000 years of bloody political history.

[One]

Sorry. Section 230 is not that fragile.

[Milton Roe]

Sorry. Section 230 is not that fragile.

IMHO, it hasn't been tested properly yet. I want a case where it's clearly argued before the Supreme Court that in fact sec. 230, as written and historically interpretted, completely immunizes all internet publishing from all the restraints put on publishing in other media, except copyright. Is that what was really intended, and can the law be pushed that far, in light of the very traditional restraints on the 1st Ammendment in areas of defamation and advertising (commercial speech)? I don't think so. But it hasn't been clearly reviewed, and won't be, until somebody out there on the net crosses the line far more eggregiously than WP has. For one thing, a case would force the court to DEFINE "publishing." Not so easy to do, these days.

[One]

Sorry. Section 230 is not that fragile.

IMHO, it hasn't been tested properly yet. I want a case where it's clearly argued before the Supreme Court that in fact sec. 230, as written and historically interpretted, completely immunizes all internet publishing from all the restraints put on publishing in other media, except copyright. Is that what was really intended, and can the law be pushed that far, in light of the very traditional restraints on the 1st Ammendment in areas of defamation and advertising (commercial speech)? I don't think so. But it hasn't been clearly reviewed, and won't be, until somebody out there on the net crosses the line far more eggregiously than WP has. For one thing, a case would force the court to DEFINE "publishing." Not so easy to do, these days.

It's been reviewed and interpreted by the 1st, 3rd, 4th, 5th, 7th (Easterbrook, as I recall this one is a little softer), 9th, 10th, and 11th Circuits using tons of fact patterns, and they all agree on broad immunity. All of them cite Zeran and the academics love it (well, they love the policy--like you and me, they doubt that the act was actually intended to do as much as Zeran says it does). The text of the statute is relatively clear. Hard to see a constitutional problem either. Hell, the civil rights people think it's a great thing for free speech and would probably argue that not interpreting it this way is a violation of First Amendment rights somehow.

It's not fragile.

There was one case that I thought might cause the First Circuit to split with the Ninth though. In this case mentioned here, the judge allowed the suit to proceed under dubious trademark claims and state personality right claims. If they prevail and this is endorsed by the 1st, it would seem to conflict with the 9th, where only Federal intellectual property rights are excepted.

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[Milton Roe]

Sorry. Section 230 is not that fragile.

IMHO, it hasn't been tested properly yet. I want a case where it's clearly argued before the Supreme Court that in fact sec. 230, as written and historically interpretted, completely immunizes all internet publishing from all the restraints put on publishing in other media, except copyright. Is that what was really intended, and can the law be pushed that far, in light of the very traditional restraints on the 1st Ammendment in areas of defamation and advertising (commercial speech)? I don't think so. But it hasn't been clearly reviewed, and won't be, until somebody out there on the net crosses the line far more eggregiously than WP has. For one thing, a case would force the court to DEFINE "publishing." Not so easy to do, these days.

It's been reviewed and interpreted by the 1st, 3rd, 4th, 5th, 7th (Easterbrook, as I recall this one is a little softer), 9th, 10th, and 11th Circuits using tons of fact patterns, and they all agree on broad immunity. All of them cite Zeran and the academics love it (well, they love the policy--like you and me, they doubt that the act was actually intended to do as much as Zeran says it does). The text of the statute is relatively clear. Hard to see a constitutional problem either. Hell, the civil rights people think it's a great thing for free speech and would probably argue that not interpreting it this way is a violation of First Amendment rights somehow.

It's not fragile.

There was one case that I thought might cause the First Circuit to split with the Ninth though. In this case mentioned here, the judge allowed the suit to proceed under dubious trademark claims and state personality right claims. If they prevail and this is endorsed by the 1st, it would seem to conflict with the 9th, where only Federal intellectual property rights are excepted.

In the last link's post you and GBG mention the Calfornia Fair Housing Council vs. Roommates.com case, which is more interesting than I think you've suggested, at least based on this analysis:

http://www.squidoo.com/cda230

Although Zeran had incredibly held that sec 230 immunises basically any Interactive Computer Service or ICS (read: anybody with a server and access to the internet) from any defamation publishers' liability even when they exercise "publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone or alter content, the 9th court begged to differ. They decided that when Roommates.com provided even a dropdown menu which made suggestions about editing of content provided by third parties, that they had gone beyond simply being an ICS and were doing more than "traditional editorial functions" ala Zeran, and had therefore lost CDA 230 immunity, due to having crossed the line into guiding the creation of information content. What if they'd had 5 pillars of editing principles?

Now, yes, there were civil rights issues to make things hot, as Roomates.com had provided dropdown menu options about whether you were looking for roommates of various types (straight, gay, male, female, black, white), and the California Fair Housing Council thus sued them. The court was annoyed and was looking for a reason to decide against Roommate.com, so it essentially decided that their dropdown menus encouraged illegal housing discrimination. Unforunately the court failed to come to grips with the question of why an ICS site that provides editorial direction in a direction the court doesn't like (categorizing people for roommate matching purposes) loses CDA 230 immunity, but should enjoy CDA 230 immunity if they provide editorial direction to categorizes people in more benign ways (such as all computer dating services do).

It's not simply that the one practice is illegal-- so is false advertising, child porn, defamation, soliciting illegal acts, and so on. None is protected by the 1st ammendment, so this is not really a constitutional problem, unless you believe the 1st ammendent is fundamentally somehow upheld if you can defame somebody on an e-newspaper letters page, but not on one that is published in print. I mean, suppose the newspaper comes out both ways with the exact same content-- how does it not violate some kind of equal-protection clause if everybody reads it with impunity on their screen, but the newspaper becomes liable as a publisher the moment one of their subscribers prints it out on a printer? Or does that need to happen at the newspaper's office? (IMG:smilys0b23ax56/default/huh.gif)

In any case, the idea of the Roommates.com decision is that the ICS loses immunity if it shapes 3rd party content in a way that encourages violation of the law.

It's going to be interesting. This blog looks at a college site which actually encourates people to post juicy campus gossip; it's called JuicyCampus.com:

http://www.concurringopinions.com/archives...housing_co.html

However, the encouragement is only global, not specific. The guy ends up deciding that JuicyCampus.com will be safe in providing an electronic platform to defame anybody in any way, so long as they don't have a dropdown menu which encourages it.

(IMG:smilys0b23ax56/default/huh.gif)

All I can say is: wait till some judges and their families find themselves on the receiving ends of this. The internet comes to all, one way or another, even if you don't look, like Seigenthaler tried not to. It's like war: "So what if they threw a war and nobody came?" Why then, the war comes to you. So also with your internet gossip bio. It just comes later to some, than others.

[One]

In the last link's post you and GBG mention the Calfornia Fair Housing Council vs. Roommates.com case, which is more interesting than I think you've suggested, at least based on this analysis:

http://www.squidoo.com/cda230

Although Zeran had incredibly held that sec 230 immunises basically any Interactive Computer Service or ICS (read: anybody with a server and access to the internet) from any defamation publishers' liability even when they exercise "publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone or alter content, the 9th court begged to differ. They decided that when Roommates.com provided even a dropdown menu which made suggestions about editing of content provided by third parties, that they had gone beyond simply being an ICS and were doing more than "traditional editorial functions" ala Zeran, and had therefore lost CDA 230 immunity, due to having crossed the line into guiding the creation of information content. What if they'd had 5 pillars of editing principles?

Don't get me wrong, I think Zeran is horrifyingly broad, but lots of courts have adopted it, and the civil libertarians are rabid any time there's even a slight concession.

When I read Kozinsky's plurality opinion, it comes off as incredibly libertarian (which is not surprising, considering the author). There is some language which would seem to give some traction, but when you look at the graveyard of claims that have been killed by section 230, a lot of them have encouragements much more specific than Wikipedia's Five Pillars about submitting content. In fact, if the five pillars were enough, it would seem to totally gut 230, because any web forum that has posted standards would be argued to be encouraging certain content.

It looks like a very narrow exception to me, and one that's built on facts that don't have much traction in cases like Wikipedia--where there's no drop down to break the law.

Now, yes, there were civil rights issues to make things hot, as Roomates.com had provided dropdown menu options about whether you were looking for roommates of various types (straight, gay, male, female, black, white), and the California Fair Housing Council thus sued them. The court was annoyed and was looking for a reason to decide against Roommate.com, so it essentially decided that their dropdown menus encouraged illegal housing discrimination. Unforunately the court failed to come to grips with the question of why an ICS site that provides editorial direction in a direction the court doesn't like (categorizing people for roommate matching purposes) loses CDA 230 immunity, but should enjoy CDA 230 immunity if they provide editorial direction to categorizes people in more benign ways (such as all computer dating services do).

I think this is precisely why that case went differently. A dropdown box was pretty blatant encouragement to post illegal content, and it was a civil rights issue to boot.


Moulton, that's a good article. The author's conclusion is that Wikipedia is easily immune (although it's pre-Roommates). It's worth looking to the appendix so that you can look up the cases where the defendant lost. They all were much more involved with creating the content rather than defining its scope.

For example, hotornot.com is not the source of the content just because they exclude pictures of the Code of Hammurabi (I would rate it '7'). So too with Wikipedia.

Also note that even if Jimbo can be called WMF's information provider, they're only on the hook for what Jimbo says--not for third-party defamation.

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