CDA Section 230 violates Equal Protection Clause & threatens National Security

There’s been a significant amount of handwringing over remarks made by so-called “free speech” advocates who assert that anyone can say anything online “because it’s ‘free’ speech,” and ostensibly protected by the First Amendment.

I demur.

Facebook, Instagram (owned by FB), and Twitter, which are the “Big Three” online Social Media (SoMe) corporate megaliths (that is, if Twitter survives Elon Musk, if not, then TikTok may take Twitter’s place), have increasingly come under fire in the past several years — justifiably so — for turning a blind eye to bad behavior, “speech” in particular (as writing and/or video, both mediums posted on the services), thereby, in essence, becoming purveyors of lies, complicit by their inactions, in aiding and abetting actions of bad actors, consequently harming our nation — a significant portion of which continues originating in nations hostile to American national interests.

Writing in the Global Security Review, June 10, 2019, in an article entitled “Facebook, Compromised: How Russia Manipulated U.S. Voters” — the second of a four-part series — Sophia Porotsky detailed how Russia, as a malign foreign actor, sought, and continues seeking, the downfall of the United States.

“Russian Information Warfare content on social media attempts to subvert Western democracies in five ways:

1.) Undermine public confidence in democratic government;
2.) Exacerbate internal political divisions;
3.) Erode trust in government;
4.) Push the Russian agenda in foreign populations, and;
5.) Create confusion and distrust by blurring fact and fiction.

Russian propaganda on social media can be divided into four themes:

1.) Political messages intended to foster distrust in government (e.g. allegations of voter fraud, corruption);
2.) Financial propaganda (i.e. create distrust in Western financial institutions);
3.) Social issues (e.g. ethnic tensions, police brutality), and;
4.) Doomsday-style conspiracy theories.

“Information warfare content is generated and disseminated through channels that fall into three attribution categories:

1.) White (overt);
2.) Grey (less-overt), and;
3.) Black (covert) channels.

They propagate a blend of authentic, manipulated, and fake stories and they feed off of and reinforce each other.”

Among the numerous sources cited was “Russia’s Approach to Cyber Warfare,” a paper written by Michael Connell and Sarah Vogler published March 2017 by the Center for Naval Analyses (CNA) — an 80-year, independent, nonprofit research and analysis organization dedicated to the safety and security of the nation that informs the decisions of Navy, Marine Corps and DOD leaders as the Department of the Navy’s federally funded research and development center — which stated that,

“Russia views cyber very differently than its western counterparts, from the way Russian theorists define cyberwarfare to how the Kremlin employs its cyber capabilities.” Part of that difference is that the Russians “conceptualize cyber operations within the broader framework of information warfare, a holistic concept that includes computer network operations, electronic warfare, psychological operations, and information operations.”

And as part of their overall operations in that realm, not only does Russia “employ cyber as a conventional force enabler,” they integrate cybercriminals, hacktivists, and other nefariously malign non-state actors into their overall operations scheme, a practice also undertaken by “China, Iran, North Korea, and other cyber adversaries.”

That information is further borne out by the writings of Professor Dr. Mark Galeotti, PhD, who in June 2022 was recently banned from travel to Russia, wrote an OpEd in the independent news journal The Moscow Times, published December 22, 2017, that, “It is hard to sustain a serious claim that NATO tanks are about to surge eastwards – though some of the Kremlin’s more fanciful propagandists do try – but the virtues of the “secret battlefield” of intelligence work is that it is precisely covert.”

Dr. Galeotti is an internationally-recognized expert in security politics, intelligence services and criminality of modern Russia, is a Senior Non-Resident Fellow of the Institute of International Relations Prague, an Associate Fellow at the Council on Geostrategy, Honorary Professor at the UCL School of Slavonic and East European Studies, Honorary Professor at University College London, and Executive Director and principal in Mayak Intelligence, a London-based consultancy specializing in, and primarily focusing upon understanding organized and transnational crime, war, politics and history in Russia. Dr. Galieotti is also a contributing member of the Network of Experts of the independent civil-society organization Global Initiative Against Transnational Organized Crime, headquartered in Geneva, Switzerland.

The root cause of such problems, wrote David J. Smith in “How Russia Harnesses Cyber Warfare,” published in Defense Dossier, American Foreign Policy Council (August 2012: Issue 4), 9,” is inherently based in, and the natural outcome of, economic lack, want and poverty, because,

“Russia is a typical extractive economy that still enjoys the benefits of the quite good Soviet educational system. Great wealth is concentrated in the hands of a few, while many people with training in math, science and computers look for work. The result is a thriving botnet-for-hire industry.”

He wrote further that,

“Russia holds a broad concept of information warfare, which includes intelligence, counterintelligence, deceit, disinformation, electronic warfare, debilitation of communications, degradation of navigation support, psychological pressure, degradation of information systems and propaganda. Computers are among the many tools of Russian information warfare, which is carried out 24 hours a day, seven days a week, in war and in peace. Seen this way, distributed denial of service (DDoS) attacks, advanced exploitation techniques and Russia Today television are all related tools of information warfare.

“This broad concept is woven into Russia’s military strategy. Russia’s way of war includes information warfare and it follows that information warfare against Russia will be considered warfare. The 2010 Russian military doctrine calls for “prior implementation of measures of informational warfare in order to achieve political objectives without the utilization of military forces.” The objective is war without tanks or, more likely, war with fewer tanks, especially at the initial stages.”

So it’s readily observable that Russia, primarily, though China, Iran, and North Korea also engage in similar activities, has continually exercised their ability, through any means, including employing criminals, to achieve their objective — the destruction of America. It’s also therefore readily understandable why, and how, Russia would subvert American online liberty to their advantage. It does not, however, excuse us from reinforcing and bolstering our national defenses in response, to counter, and contain, such measures.

And toward that end, toward national security, it is in our nation’s best interests to not merely advocate liberty, but to steadfastly strengthen freedoms by strongly enforcing laws against such lawless behavior.

The lawless behavior to which I refer has already been tacitly noted (including the culmination of years of consistent subversive activity by America’s enemies as evidenced by the events of January 6, 2021), but what has not been noted is SoMe companies’ roles in maintaining national security, for they are the tools, the venues through which America’s enemies are manipulating Americans to wreak havoc, cultivate chaos, disseminate dissension and division, and enjoy the fruits of their nefarious labors — a weakened and confused United States.

The solitary sentence in law which has contributed to the problem is Section 230 (c)(1) and (2) of the CDA (Communications Decency Act) (TITLE 47 / CHAPTER 5 / SUBCHAPTER II / Part I / § 230 (c)(1)), which reads in pertinent part:

“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.”

The applicable section in whole reads as follows:

(c) 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).

see: https://uscode.house.gov/view.xhtml?req=(title:47%20section:230%20edition:prelim)

It essentially holds harmless Internet companies from adjudicating, monitoring, or managing the activities of the participants (except in sex trafficking cases, etc.) — thereby treating them DIFFERENTLY from ANY OTHER BROADCAST or PUBLISHING MEDIUM. That one action has tacitly permitted not mere “free speech,” but openly flagrant violations of law, such as the deliberate impugning & besmirching of one’s character and motives, etc., etc., etc., NONE of which would be legal either on air, or in print. It’s been a LITERAL Wild Wild West “no holds barred” free-for-all, which ironically, has originated in the Western United States, in Silicon Valley and surrounding areas.

By removing (repealing) that portion of the Communications Decency Act (TITLE 47 / CHAPTER 5 / SUBCHAPTER II / Part I / § 230 (c)(1)), it would hold responsible ALL online venues for the material posted on their service(s). Instead of reading as it now does, it could instead read something like,

“All providers or users of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

See how easy that is?

Congress could — and should — do the same.

Simply change the the law, because it’s un-Constitutional, anyway, violating the Equal protection clause.

A case could be, and should be, made and appealed up to the SCOTUS (Supreme Court of the United States) on those grounds, that it violates the Equal Protection clause of the Fourteenth Amendment, which reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The law itself, Section 230, is even blatant in its inequality under law, insofar as it also specifically mentions areas in which it does NOT apply, in Section (e) which states:

(e) Effect on other laws
(1) No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.

(2) No effect on intellectual property law
Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

(3) State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

(4) No effect on communications privacy law
Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.

(5) No effect on sex trafficking law
Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit-

(A) any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;

(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18; or

(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.

Remember:

There’s NO SUCH THING as freedom without some responsibility.