In fact, as can be the case with much of the American law enforcement system, platform policing seems designed to make people who are already marginalized even more so. Kim Kardashian gets to keep her nudes up on Instagram, but when queer and trans magazines use the app to promote their cover stars, Instagram refuses their paid posts with the terse and inaccurate message, “we don’t allow ads for escort services.” Instagram acknowledges it uses an algorithm to bury posts they deem “sexually suggestive,” allowing them to remain on the app, just making them significantly harder to find. But few moderation decisions come with clear communication or an appeals process. (Take the Twitter users banned after they were the ones targeted by a harassment campaign, or the ones silenced after promoting their own work investigating the alt-right.)
This current post-massacre moment will not be the first time someone has tried to hold web sites accountable for gun violence. In 2012, Radcliffe Haughton purchased a gun from a web site called Armslist and used it to kill his wife Zina, two bystanders, and himself—just two days after Zina was granted a restraining order against her husband. Like Craigslist, the web site didn’t sell anything directly; it was a platform for buyers and sellers to arrange their own sales. Haughton’s daughter, Yasmeen, brought multiple suits against Armslist, arguing in part that the site was culpable for being a platform where Haughton could purchase a gun he would otherwise be barred from buying. The case made it to the Wisconsin Supreme Court, where Armslist triumphed: Under Section 230, according to the decision, Armslist was a platform, not a publisher, and was therefore immune.
There is no 230 carveout for guns. Neither is there a 230 carveout for hate crimes, white supremacist extremism, or domestic terrorism (or however we describe this terrifying moment). But this is what Congress would have to inevitably broach should they respond to calls to “hold accountable” web sites like 8chan, where in the last six months alone, three men have posted their sadly now-unremarkable racist screeds before perpetrating mass killings. To make such content an exception to 230, lawmakers would also have to decide: What do we call this?
There is a 230 exception for prostitution, which President Trump signed last year. That is the law known as SESTA-FOSTA (acronyms for the “Stop Enabling Sex Traffickers Act” and the “Allow States and Victims to Fight Online Sex Trafficking Act”). For online platforms, SESTA makes real the threat of civil suits for content related to prostitution and trafficking—and few stopped to ask questions before quickly hitting the “ban” button. One example: Cloudflare, which took longer to decide to jettison the white supremacist web site Daily Stormer than it deliberated over kicking off Switter, a social networking space created by sex workers and running on the open-source Mastodon platform, after fears arose that they’d be banned from Twitter.
Now, as a response to white supremacist violence, what might be sold as simple fixes to Section 230 will likely have similarly immense collateral consequences.
Look back to SESTA. Billed as a way to fight human trafficking, it codified an exception to Section 230 for prostitution. Within minutes of the Senate passing SESTA, web sites that sex workers used to advertise, along with forums where they shared concerns about dangerous clients and workplace safety, began shutting down. This resulted in a reported increase in exploitation and violence for this community. Ad sites once allowed many sex workers to work independently; now those who sought to control or profit from them could rush in to take advantage of the absence. People who were actually trafficked also lost the digital evidence-trail online ads and bad client reports generate, which could have helped them hold their traffickers accountable. This was just one reason why both sex workers and people who have been trafficked opposed SESTA.
Whether SESTA has decreased trafficking—allegedly, the whole point—remains to be seen. What’s known is that the number of child sex-trafficking cases prosecuted in the U.S. has dropped considerably since SESTA became law. The only thing that’s certain is trafficking cases involving the ad site Backpage have gone down, but SESTA didn’t kill off Backpage; the Department of Justice knocked backpage.com offline, seizing their servers and other assets, before SESTA was signed into law.
This is not the first time in American history that racist terror and new technology have converged. Jessie Daniels, a sociologist who has studied white supremacy extensively, looks back to the early part of the twentieth century, when the Ku Klux Klan saw opportunity in motion pictures. “Capitalizing on this new technology, the KKK created film companies and produced their own feature films, with titles like The Toll of Justice (1923) and The Traitor Within (1924), screening them at outdoor events, churches, and schools,” wrote Daniels. “By the middle of the 1920s, the Klan had an estimated five million members. This growth was aided by White supremacists’ recognition of the opportunity to use the new technology of motion pictures to spread their message.” In this vein, Daniels calls the alt-right “innovation opportunists.”
In the face of profound legal challenges, very powerful new media, and daily threats to people of color, immigrants, Muslims (and anyone else Trump may have targeted with his Twitter feed), what can be done? One potential answer, according to Daniels, lies with Virginia v. Black. In that 2003 case, the Supreme Court established that laws prohibiting burning crosses “with the intent to intimidate” were not a violation of the First Amendment. “Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan,” the Court wrote, “which, following its formation in 1866, imposed a reign of terror throughout the South, whipping, threatening, and murdering blacks, southern whites who disagreed with the Klan, and ‘carpetbagger’ northern whites.”
The Court clarified that “intent to intimidate” is the relevant test as to whether or not cross burning is protected expression: “While cross burning does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful.” Some lawyers see this decision as a way to deal with the online aspects of terrorism and revenge porn.
For caution and guidance, it is wise to also cite one of the authors of Section 230, now-Senator Ron Wyden, who has been clear over the last 20-plus years about what removing this law means. “Tech companies certainly need to continue to be far more vigorous about identifying, fingerprinting, and blocking content and individuals who incite hate and violence,” he said in a statement in March. “If politicians want to restrict the First Amendment or eliminate the tools with which much of the world communicates in real time they should understand they are also taking away the tools that bear witness to government brutality, war crimes, corporate lawlessness, and incidents of racial bias.”
Wyden’s statement continued, as if anticipating this moment, “So often in the wake of horrible events politicians grasp for knee-jerk responses that won’t solve real problems, and may even make them worse. Focusing on restricting speech only deflects from the core rot of white supremacy that our country and the world needs to address.” And the senator added this, in a statement to The New Republic: “Right now politicians are desperate to blame anything besides Republicans’ blockade of any and all gun safety legislation for the spate of mass shootings. Video games and social media didn’t cause this violence, and neither did Section 230.”
White supremacy, not a carved-up amendment to a 23-year-old law, is the fundamental problem. Daniels, the sociologist, is hopeful politicians won’t just turn to easy fixes, and that this moment could guide the nation to a more measured response. And that’s going to require platforms to consider much more challenging questions—and for our sake, doing their considering and questioning in public. As Daniels told The New Republic on Tuesday, the day the House Homeland Security Committee called on 8chan’s owner to testify before Congress, “The question becomes, what’s a burning cross in the digital era?”