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22 Mar 2023
CDA Section 230 has been called ``The 26 Words that Created the Internet''. While it is obvious how Sec 230 protects the World Wide Web, it is equally important for e-mail.
A recent Pennsylvania court case emphasizes this point. Dr. Thomas, a professor at the Univeristy of Pennysylvania forwarded an article about another professor Dr. Monge to an online e-mail discussion list. Dr. Monge claimed the article was defamatory and sued Dr Thomas, the university, and many others. But since neither Dr Thomas, nor the university were the author of the article, under Sec 230 they were quickly dismissed from the case. This is good news for anyone who (like me) runs mailing lists for other people. If we were legally responsible for everything anyone said on a list, the number of lists would be a whole lot smaller.
But Sec 230 doesn't just protect mailing lists. It also protects spam filtering, and on the modern Internet, mail without filtering would be unusable.
Section 230 was passed largely in response to Stratton Oakmont vs Prodigy which said that since Prodigy did some moderatioon of its forums, they were responsible for all of the material that they published, with no allowance for good faith moderation.
I host a bunch of mailing lists on my server. Some of them I subscribe to, some I don't. On occasion someone misbehaves at which point I may set the list to wait for hand approval of their messages, or even kick them off the list. In the absence of Sec 230, since I do some moderation of mail, I'd be responsible for all of it, which would make me a lot more cautious about who I let subscribe and and what I let people talk about.
Now consider spam filtering. Mail comes into my server, and a mostly automated process decides whether to deliver it, put it into a spam folder, or reject it. The basic process is automated, but I often tweak the rules, changing what patterns it looks for, what networks get speclai treatment or are blocked. That is very much like what social media moderation does. If Facebook or whoever were to be liable for bad messages their moderation lets through, anyone who does spam filtering, from my dozen user system through billion user Gmail, is responsible too.
This isn't hypothetical. Texas law HB20, which was primarily intended to tell social media that they can't censor based on ``viewpoint``, casually outlaws spam filtering, too:
Sec. 321.054. IMPEDING ELECTRONIC MAIL MESSAGES PROHIBITED. An electronic mail service provider may not intentionally impede the transmission of another person's electronic mail message based on the content of the message unless:
(1) the provider is authorized to block the transmission under Section 321.114 or other applicable state or federal law; or
(2) the provider has a good faith, reasonable belief that the message contains malicious computer code, obscene material, material depicting sexual conduct, or material that violates other law.
Section 321.114 says:
Sec. 321.114. AUTHORITY TO BLOCK CERTAIN COMMERCIAL ELECTRONIC MAIL MESSAGES; QUALIFIED IMMUNITY.
(1) provides a process for the prompt, good faith resolution of a dispute related to the blocking with the sender of the commercial electronic mail message; and
(2) makes contact information for the resolution of the dispute accessible to the public on the service provider's Internet website.
That is, I can't block spam at all unless I know it's illegal or commercial, and if I want to block commercial spam, I have to provide contact information and negotiate with every spammer who complains. Do they have any idea how many spammers there are and how many kinds of lawful-but-awful spam there are? How could anyone smaller than Gmail possibly deal with the flood of complaints if you block any spam at all?
Fortunately, Section 230 immunizes good faith blocking of "otherwise objectionable" material, and courts have consistently held spam to be otherwise objectionable. At this point none of the 230 reform bills in Congress seem likely to pass, but if any do, and as a side effect they destroy e-mail, don't be too surprised.
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