Section 230: what does it really mean?, Absolute hands-off policy? Options

[Emperor]

I'm no legal expert, but I am continually baffled by claims of site operators that if they make any effort whatsoever to exclude hardcore pornography from their website that they are opening themselves up to a world of legal hurt.

This seems to be the prevailing theme over at Wikipedia, as we just heard from Mr. Godwin. Don't change the content, or you can be sued.

Certainly there are legal incentives to operate Wikipedia the way WMF does. It seems to me that those incentives have been discussed elsewhere in this forum. Section 230 of the Communications Decency Act provides a strong framework for staying arm's-length away from from the addition or modification of content.

This never made any sense to me. I've been on plenty of websites where if you posted a nude pic the owners or moderators would charge in, tear down the pic, and warn or ban you.

So what is actually in the text of Section 230 of the Communications Decency Act?

Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(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; or
(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).

The way I interpret this is that it's ok to try to keep offensive pics off of your website, that the US Congress has your back on that, even if you're clumsy and stupid about it as Good Samaritans can be. It's also ok to implement technical features that enable users to screen out the porn themselves.

Maybe there are specific cases where the courts have behaved inconsistently, but I'm pretty tired of seeing Section 230 cited as a reason for the WMF not to do anything whatsoever to address the problems on the site. Section 230 clearly does not rationalize this behavior. Instead, it says practically the opposite, that responsible oversight of user-generated content is not to be used as an excuse to hold the service provider liable for the content itself.

Text of Section 230 of the Communications Decency Act

[Kelly Martin]

I find Godwin's argument disingenuous. A significant purpose of Section 230 was to overturn the prior judicial rule that a website operator would become liable if it moderated user-provided content. Congressional intent on this issue was crystal clear on the record, and the courts fairly quickly ruled that Section 230 does, in fact, displace the prior precedents that Godwin offered as the legal basis for being lax in moderating content. There is no reasonable way that Godwin cannot possibly know this, if we assume that he is a competent attorney (which I will grant for the purpose of this discussion). Therefore, we must conclude, by the fact that he argues the position that he does, that his client (at the time, Wikimedia) has directed him to produce a legal argument in support of a laissez-faire attitude toward user generated content. Attorneys are under no obligation to offer their best legal advice to nonclients; they are only obligated not to lie to them.

I therefore conclude that Wikimedia (and probably Jimmy) actively wants Wikipedia to be unmoderated to the maximum extent practicable, and Godwin was (implicitly) ordered to proffer to the community a legal argument why this is "necessary". (Of course, Godwin will likely refuse to confirm or deny this. Privilege, you know.)

The underlying moral here is to to remember, when dealing with an attorney who is not your attorney, that attorney may very well not be giving you an unbiased representation of the law, and, in fact, may not even be allowed to do so, because of the attorney's duty to zealously represent his or her client.

[Emperor]

He's asserting two insane things:

1) An anything-goes website is appropriate for children
2) WMF must host all the penis pics the community wants or it's in legal trouble.

I will say he is a very good lawyer, to be somewhat likeable and believable with such a weak position to maintain. I believed this Section 230 b.s. for years. It just sounds believable. "Section 230".

[Kelly Martin]

He's asserting two insane things:

1) An anything-goes website is appropriate for children
2) WMF must host all the penis pics the community wants or it's in legal trouble.

I will say he is a very good lawyer, to be somewhat likeable and believable with such a weak position to maintain. I believed this Section 230 b.s. for years. It just sounds believable. "Section 230".

What I'm saying, dear sir, is that he's asserting these things because Wikimedia told him to.

[anthony]

Congressional intent on this issue was crystal clear on the record

It's even in the name of the law. The whole point of the Communications Decency Act was to decrease porn on the Internet, not to increase it, and Section 230 of it is no exception.

[Emperor]

What I'm saying, dear sir, is that he's asserting these things because Wikimedia told him to.

I can imagine that in the early days Jimmy and friends enjoyed the porn because it boosted traffic numbers. Fresh off his Bomis experience he had to know what he was doing.

Afterwards they sought legal cover, and an improvised strategy eventually ossified into "this is the way we must do things forever".

[anthony]

What I'm saying, dear sir, is that he's asserting these things because Wikimedia told him to.

I don't think so. Godwin has been hypocritical about Internet porn long before he had anything to do with Wikimedia. In fact, I suspect the majority of the Wikimedia board (including Jimmy), and Sue, hold a much less militant view on the subject than Godwin. Jimmy and Sue just want Wikimedia to succeed (so that they can gain more power). Godwin was more into it for idealistic reasons - "imagine a world in which every single human being can get access to free-content BDSM images in the comfort of their home"). (Interestingly, Moeller seems to be in it for both.)

Without a doubt Jimmy and Sue were happy to let Godwin espouse those legal theories while he was in charge (mostly internally to volunteers, who in turn leaked them out to the public with or without mentioning his name). And Jimmy and Sue probably knew all along that the theories were legally vacuous. But I don't think the idea was Jimmy's or Sue's.

Remember, eventually Wikimedia got fed up with Godwin enough that Godwin is no longer with WMF.

[Kelly Martin]

What I'm saying, dear sir, is that he's asserting these things because Wikimedia told him to.

I can imagine that in the early days Jimmy and friends enjoyed the porn because it boosted traffic numbers. Fresh off his Bomis experience he had to know what he was doing.

Afterwards they sought legal cover, and an improvised strategy eventually ossified into "this is the way we must do things forever".

This doesn't compute unless you want to allege that Godwin was offering legal advice to Wales years before Godwin came to work for the WMF. While I believe Godwin and Wales may well have had some slight contact in the years prior to his arrival at the WMF in 2007 (probably through political or philosophical connections) I rather doubt that Godwin ever formally offered legal advice to either Wales or the WMF prior to 2007. If anything the "ossification" occurred long before Godwin arrived, and Godwin was merely tasked to produce a plausible legal argument why Wikimedia is legally obliged to behave exactly the way Jimmy wants them to.

[anthony]

I can imagine that in the early days Jimmy and friends enjoyed the porn because it boosted traffic numbers. Fresh off his Bomis experience he had to know what he was doing.

Afterwards they sought legal cover, and an improvised strategy eventually ossified into "this is the way we must do things forever".

Sort of, except I think they realize it's not going to be like that forever. Godwin served his usefulness, and now he's gone. And now they're working toward backtracking on those ideals which got them popular in the early days. (It's going to be a long and slow process. They've gotta pretend like the change is coming from "the community", so they don't lose too many volunteers over it. But ultimately I think they realize that the next phase of Wikimedia growth is going to come from a less hard core stance with regard to porn.)

[Emperor]

Thanks for the clarification. I didn't mean Godwin specifically though, more like the WMF legal team. But yes you would know the timeline better than me, having been through the early years.

I don't think I mind so much that he zealously represents his clients' point of view, but bringing his own daughter into the discussion takes it over the line. Makes it harder to think he's just a mercenary.

But ultimately I think they realize that the next phase of Wikimedia growth is going to come from a less hard core stance with regard to porn.)

If they realized this don't you think they'd do something more than just a commission that doesn't even achieve its own modest goals? (e.g. checking out how other websites do things)

[anthony]

What I'm saying, dear sir, is that he's asserting these things because Wikimedia told him to.

I can imagine that in the early days Jimmy and friends enjoyed the porn because it boosted traffic numbers. Fresh off his Bomis experience he had to know what he was doing.

Afterwards they sought legal cover, and an improvised strategy eventually ossified into "this is the way we must do things forever".

This doesn't compute unless you want to allege that Godwin was offering legal advice to Wales years before Godwin came to work for the WMF.

Why doesn't it compute?

If anything the "ossification" occurred long before Godwin arrived, and Godwin was merely tasked to produce a plausible legal argument why Wikimedia is legally obliged to behave exactly the way Jimmy wants them to.

Ah, the "ossification". I don't know. The WMF has changed drastically since the days of Brad Patrick. They grew up in many ways. I don't think Godwin "ossified" the pro-porn policies, but I certainly think he delayed the move toward more rational ones.

[anthony]

But ultimately I think they realize that the next phase of Wikimedia growth is going to come from a less hard core stance with regard to porn.)

If they realized this don't you think they'd do something more than just a commission that doesn't even achieve its own modest goals? (e.g. checking out how other websites do things)

They basically tried to impose the new policies by fiat and they received extreme backlash from the volunteers, so they backed down. The rein of Mike Godwin as legal council didn't ossify the position forever, but it has proven to make it very difficult to change.

The departure of Mike Godwin and the less hardened stance with regard to porn is not a coincidence. I think that is absolutely obvious. Look at the other thread. Godwin won't even answer my question as to whether or not he agrees with Jimmy's public stance on this issue.

This post has been edited by anthony: Tue 10th January 2012, 3:47pm

[Kelly Martin]

I think it's fairly obvious that Wikimedia largely is pro-porn, although there is obviously some dissent to that from newcomers to the organization (e.g. Sue Gardner). I think Jimmy is struggling with how to reconcile his personal pro-porn stances with his fervent desire to recruit more people, especially with people like Sue (and, we can hope, Kat) pointing out to him that the "locker room" mentality that having the site saturated with penis pics creates a fairly hostile environment to potential female editors.

I also agree that Godwin's advocacy goes beyond zealous representation; I think he's reflecting his personal attitudes as much as Wikimedia's interests. In 2007, I think Wikimedia's attitude on this issue cohered with Godwin's; it's less clear that it does now. In any case, Godwin is not to blame for Wikimedia's pro-porn attitudes; he is only responsible for the fatuous argument that Wikimedia "cannot" remove porn without risking liability for doing so badly.

I can also attest that WMF did not have any policy against staff or volunteer redaction of inappropriate content from Wikipedia during Brad Patrick's tenure; it's just that the definition of "inappropriate" has never included pornographic material. I know that I personally redacted quite a lot of "inappropriate" material, using oversight, at the behest of Wikimedia directors, officers, and staff, as did Danny (who at the time was WMF staff).

[anthony]

I think Jimmy is struggling with how to reconcile his personal pro-porn stances with his fervent desire to recruit more people, especially with people like Sue (and, we can hope, Kat) pointing out to him that the "locker room" mentality that having the site saturated with penis pics creates a fairly hostile environment to potential female editors.

You really think Jimmy cares about porn?

Jimmy cares about power. Porn was just a means to that power. But the times, they are a changin'.

(I should mention, I suppose, why the times are changing. It's in no small part due to the actions of Sanger and Kohs (and others) in pointing out the prevalence of porn to the major donors. I have no doubt Wales and Gardner have had conversations with donors and potential-donors over the issue.)

In any case, Godwin is not to blame for Wikimedia's pro-porn attitudes; he is only responsible for the fatuous argument that Wikimedia "cannot" remove porn without risking liability for doing so badly.

He certainly helped promote that meme. Though IIRC it was around long before Godwin came to the WMF (which, I suppose, is not to say he didn't create it, though I kind of doubt he created it).

This post has been edited by anthony: Tue 10th January 2012, 3:59pm

[Kelly Martin]

You really think Jimmy cares about porn?

Jimmy cares about power. Porn was just a means to that power. But the times, they are a changin'.

I think Jimmy really does believe the libertarian craptrap that he spouts off about from time to time. Of course, like so many people, his abstract ideals are subject to being set aside when they interfere with personal interests. So Jimmy'll support your right to have porn, unless it's porn that he doesn't like, in which case he'll gladly throw you in jail. (But really that doesn't make him any different that nearly every other libertarian I've run into.)

[anthony]

You really think Jimmy cares about porn?

Jimmy cares about power. Porn was just a means to that power. But the times, they are a changin'.

I think Jimmy really does believe the libertarian craptrap that he spouts off about from time to time. Of course, like so many people, his abstract ideals are subject to being set aside when they interfere with personal interests. So Jimmy'll support your right to have porn, unless it's porn that he doesn't like, in which case he'll gladly throw you in jail. (But really that doesn't make him any different that nearly every other libertarian I've run into.)

Well, I think Jimmy cares about freedom of speech. I think Jimmy cares about governments making porn illegal. But that's not what the debate is about.

I don't think Jimmy cares whether or not there's porn in Wikipedia. Whereas I think Godwin does. And I think Moeller does. And I think Gardner doesn't. (And I think Sanger does, except on the other side.)

Wales only cares about himself. Having porn in Wikipedia doesn't help Jimmy Wales, except to the extent it keeps the volunteers from revolting, balanced against the lost donor revenues.

This post has been edited by anthony: Tue 10th January 2012, 4:09pm

[Kelly Martin]

I don't think Jimmy cares whether or not there's porn in Wikipedia. Whereas I think Godwin does. And I think Moeller does. And I think Gardner doesn't.

I don't think Jimmy cares what's in Wikipedia, as long as it doesn't say anything bad about him or his friends.

[TungstenCarbide]

Jimmy cares about power. Porn was just a means to that power. But the times, they are a changin'.

There was an old goat named Jimbo,
Who famously posed with Bimbo
From his fortune in Porn,
Wikipedia was born,
Then Sanger got chucked out the window.

--user:ruff ruff

This post has been edited by TungstenCarbide: Tue 10th January 2012, 5:45pm