The shady side of the Communications Decency Act

In the 2010 movie "The Social Network," a young Mark Zuckerberg, after being dumped by his girlfriend, creates a campus website called Facemash by hacking into college databases to steal photos of female students, then allows site visitors to rate their attractiveness. In "Mean Girls," a burn book is used to spread nasty rumors and stories about high school students.

Facemash is alive and well in 2020, and the burn book has gone online and become viral. In so-called "tea rooms" or "shade rooms," teenagers post disparaging comments and photos of their peers with impunity and reckless abandon. They engage in online gossip and bullying with almost complete anonymity, and the subjects of their posts are hounded, haunted and sometimes driven to suicide by mean-spirited disregard for their privacy or feelings.

Using a major platform such as Instagram or TikTok, middle and high school students make unidentified accounts and promise anonymity to people who send them "tea" (i.e., gossip) about other students. Although they promise anonymity, shade rooms often use kids' full names, for everyone on the internet to see. Many shade rooms are associated with schools, even though they're not sanctioned -- or even known about -- by school administrators. Short of monitoring their every waking moment, there is almost no way for parents to keep track of their children's online accounts or understand how they may be traumatized by what is posted there. Which leads us to Section 230 of the Communications Decency Act. The law, enacted in 1996, was put into place to shield "interactive computer services" such as Facebook, YouTube and Instagram from liability for content posted on their sites. The logic was that these services should not be treated as the publishers or speakers of third-party content; they are merely the vehicle for its transmission.

Pursuant to Section 230, such online platforms are protected from lawsuits if a user posts something illegal, with exceptions for copyright violations, sex work-related material, and violations of federal criminal law. The photos, falsehoods and shaming that are the modus operandi of most shade rooms are, according to the law, not Instagram's responsibility. Instagram, of course, is a responsible corporate citizen, and its terms of service prohibit harassment and bullying. Nevertheless, shade room accounts are still abundant and abundantly nasty. They have become, especially in this age of pandemic quarantine, the go-to social media network for tweens and teens.

Nobody is happy with Section 230 these days, but the reasons for that unhappiness and the proposals for change are almost as divided as our country seems to be. As many as seven different proposals -- Democratic, Republican and bipartisan -- are on the table to tweak, rewrite or entirely gut it. Everyone is asking how players like Facebook and Instagram can look the other way when false, threatening or downright incendiary content is transmitted and why there should not be at least some responsibility for policing content. Republicans have been targeting platform-moderation decisions that they say reflect anti-conservative bias. Responding to moves by Twitter, Facebook and others to flag or refuse to transmit content they considered objectionable, conservatives have said that algorithms used by the social media giants to flag and censor content are inherently biased. Democrats, in contrast, have been primarily focused on getting platforms to remove content associated with hate speech, terrorism, and harassment. In January, President-elect Joe Biden even proposed revoking Section 230 completely.

Remarkably, there is some middle ground upon which agreement might be reached. Two bipartisan bills would go a long way toward holding transmission companies accountable for content carried on their sites. Unfortunately, neither of the proposals addresses the shade room monster, but with a little rethinking and redrafting, the monster could yet be slain.

The bipartisan Elimination of Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT Act) addresses online child sexual exploitation, using a "bargaining chip" approach and creating incentives for technology platforms to "earn" liability protections for violations of laws related to online child sex abuse materials. Platforms that didn't take appropriate steps to prevent child exploitation would be subject to private lawsuits.

Another bipartisan plan, the Platform Accountability and Consumer Transparency Act (PACT Act) would strengthen transparency and hold technology platforms accountable for content on their sites. Content moderation decisions would have to be spelled out and "acceptable use policies" would let users know about processes for disputing such decisions. Quarterly reports would document what was removed, demonetized or deprioritized, and platforms would be expected to collaborate on best practices and standards for handling content.

The EARN IT Act presents perhaps the best opportunity for shutting down malicious shade rooms. As currently drafted, the bill would attack child sexual exploitation by exempting companies that allow it on their sites. Although shade room posts could involve sexual exploitation, most won't. They will, however, involve plenty of bullying -- with or without sexual overtones -- along with threats and intimidation. These should be sufficiently anathema to trigger a duty to monitor and delete. They should be included in the exemptions from Section 230 protection.

There is precedent. In July 2018, President Donald Trump signed into law a House bill known as FOSTA, the Fight Online Sex Trafficking Act, and a Senate bill, SESTA, the Stop Enabling Sex Traffickers Act. The bills cut a big hole in Section 230's safe harbor with an exception that makes website publishers responsible for any third-party ads for prostitution and other sex work on their platforms.

If an exception can be created for sex trafficking, it can certainly be put into place for online bullying of vulnerable minors via shade rooms. Today there is neither criminal nor civil liability for allowing such activity on a social media site. An express carve-out, along the lines of FOSTA-SESTA, or a complete repeal of Section 230 would make it possible for victims to finally have their day in court.

Nothing will happen without this carve-out. Victims have little chance of recovering against teenage bullies or their families. They need to be able to go after Facebook or Twitter or Instagram, to recover emotionally and monetarily. The social media giants must be incentivized to do the right thing; they will not do it on their own. These companies have the means to develop algorithms that will identify and block harmful content. It's nothing new: Broadcast networks have been doing it for decades because they risk shut-down if they let banned content through.

The EARN IT bargaining chip can provide a safe harbor for companies that adhere to industry standards and act responsibly. Those that fail to act after having been notified or otherwise learning of objectionable content should face both criminal and civil liability. This is a policy that everyone, on both sides of the aisle, should be able to get behind. We all care about our children. We all believe that bullying has no place in a civil society. We all want what's best for the next generation.

It's time to enlist the social media behemoths in the battle to shut down shade rooms. 