[Foundation-l] Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act

[Anthony]

On Sun, May 18, 2008 at 2:38 PM, Mike Godwin <mgodwin at wikimedia.org> wrote:
> Anthony writes:
>>
>>  On Sun, May 18, 2008 at 10:10 AM, Mike Godwin
>> <mgodwin at wikimedia.org> wrote:
>>> My view continues to be that the Foundation should almost never
>>> engage
>>> in direct editing or removal of project content, except (as in DMCA
>>> takedown notices) when we are required to do so by law.
>>>
>> FWIW, I think that's an absolutely terrible decision that is the cause
>> of a great deal of completely unnecessary ill-will toward the
>> Foundation and its projects.
>
> I think there will be unnecessary ill will towards the Foundation and
> its projects no matter what we do or do not do.

I meant to take care of that objection by the use of the word "unnecessary".  :)

> But I think there would be more
> unnecessary ill will towards the Foundation and its projects if the
> Foundation used a heavier hand in removing content, precisely because
> it would give rise to the expectation that the Foundation is
> positioning itself in a fundamentally editorial role.

I don't think more than a very small number of people are ever going
to know what role the Foundation is positioning itself in.  Even the
vast majority of project contributors don't have a clue whether the
Foundation removed those articles itself or they told someone else to
remove it or they pointed it out to someone who decided of their own
free will to remove it.

And of those who are inside enough to know the role the Foundation is
positioning itself in, it can easily be explained to them that removal
of content which clearly violates the pre-established and codified
terms of service is *not* the same as having an editorial role over
that content.  When Yahoo removes a message from its message board
because it violates its terms of service, do people claim that they
now have an editorial role over all the other messages?

> Look how much
> ill will is generated simply because I suggested to members of the
> community that there are legal problems associated with a couple of
> Wikinews articles!

A lot of this was due to a misunderstanding of Section 230 of the CDA,
which I think you're promoting by this hands-off policy.  A lot more
was due to what was at least perceived as an uneven application of
these so-called "suggestions".  Some of it I think you'll get no
matter what, but I think a fairly applied policy of removal of certain
kinds of information will get less ill will than the current strategy.

> Thomas Dalton, for example, thanks that's the
> equivalent of an order.

I tend to agree with him there, actually.

> Me, I think it's better to explain what's
> going on and ask the community to do the right thing in the hope that
> they will take my advice.
>
And that's exactly what I think is so hugely irresponsible.  The
foundation is routinely made aware of absolutely vile and libelous
content being broadcast via its servers.  In those situations I think
it has a responsibility to remove that content, not to point it out to
someone and hope they do the right thing.  These servers are the
property of the Wikimedia Foundation.  The Wikimedia Foundation has
every right to enforce its terms of service for those who use its
property, and I'd say they have a responsibility to do so when they
are made aware of it.

> If I did what you suggest, and simply removed material from Wikinews
> that I thought would generate a legal problem, there would still be
> ill-will ("Censorship!"), and I'd still be called upon to justify the
> removal, and there's still be ginned-up controversy.

Right, taking responsibility for the content that you knowingly
broadcast to the world doesn't solve every problem, but it'd solve
others.  I think John Seigenthaler, for instance, would have a lot
less of a problem with Wikipedia if the foundation would act to remove
vile content from the history of its biographies rather than telling
the community of the problem and hoping it figures out a solution.

I think another thing which can and should be done is to remove
unreviewed articles from Google searches, and to display only the
reviewed versions of an article to the public unless they explicitly
request the latest version.  And I don't think the foundation should
wait around for the communities to magically reach a consensus on this
issue before implementing such a plan.  And I don't think it's fair to
blame it all on Brion when it gets turned on, either (certain other
features seem to have been implemented that way).  I believe this is
an executive decision that should come from the top down, either from
the executive director or from the board.  You can blame it all on me
if you want, though (but make sure it's implemented according to my
specifications if you do so).  :)

> In addition,
> potential litigants would perceive the Foundation as playing a heavier
> editorial role than it does, and would be more likely to sue us in the
> hope of either getting the statutory immunity overturned or of getting
> it construed in a way that diminishes its protection. I believe it
> helps to think through what the social consequences of the direct
> action.
>
I guess this is a possibility, though I find it hard to believe that
the current precedent that a service provider is exempt even from
knowingly distributing libelous content will stick.  Whether the
courts or congress, something's gotta give.  The WMF better hope it's
not the courts that give first, if it's going to stick with its
hands-off-lets-hope-the-community-does-something approach.

>> The only semi-coherent explanation for
>> it seems to be that it is required for protection under Section 230 of
>> the CDA, but as you and I both know this is absolutely not correct.
>> In fact, everything I have read on the matter suggests that the whole
>> point of Section 230 of the CDA was to allow service providers to
>> engage in direct removal of project content without becoming liable
>> for that which it failed to remove.
>
> That's a correct reading of the reasoning behind Sec. 230.

I'll be sure to webcite this email and link to it often. :)

> And if
> you're AOL or MSN or abc.com or Google, you can afford to pay for a
> dozen summary judgments in your favor every week, on Sec. 230 grounds.
>
> That's not us, however.  Better than defending Sec. 230 every time it
> comes up is to lower the public's expectation that the Foundation is
> going to step in and fix everything for a would-be plaintiff.  That
> way, we spend less donated money on cases.
>
> Now, you may be wealthy, Anthony, and so it may seem sensible to you
> to invite lawsuits that you can then get dismissed on Sec. 230 grounds
> -- a kind of very expensive version of whack-a-mole.
>
Nah, I've got the opposite defense.  I'm broke, plus I live in Florida
(home of some of the world's most debtor-friendly asset protection
statutes), so there's no sense in anyone suing me in the first place.
The WMF is obviously in a more precarious position, being cash poor
but having some intangible assets with a high fair-market value.

> But if the purpose of our engagement with the community of editors is
> to empower them to add to the availability of the sum of human
> knowledge, then it makes sense to empower the community to fix as many
> problems with the content they provide as possible, rather than take
> that responsibility away from them and place it in, say, me or Sue or
> Cary. So I prefer to advise community members rather than give them
> orders (as if they felt any obligation to follow my orders, which
> hardly anyone does), and I believe it's wiser to reserve my own
> ability to remove content even though Sec. 230 allows it.  That may
> seem like an "absolutely terrible decision" to you (not merely
> terrible, but "absolutely" so!), but perhaps you're a better attorney
> than I am.
>
My comment was not made from a legal standpoint.  It may very well be
slightly less risky from a legal standpoint to take this hands-off
approach.  I do find that hard to believe, because basically no other
service provider in the US is adopting this extreme of a position, but
then again the WMF does run by leaps and bounds the world's largest
non-profit website.  But to my mind the risk is worth taking, because
the alternative is so outrageous.  I guess you wouldn't make this
information public, but maybe you can tell the board your estimate of
exactly how much greater a risk it'd be facing by adopting a hands-on
approach to removal of libel.

> I should add that there is a complicating factor with regard to Sec.
> 230, and that's that while simple removal is protected, it's unclear
> whether every court would agree that more subtle substantive editing
> is protected -- by engaging in the development of the content of an
> article, the Foundation and its agents or employees may
> unintentionally negate Sec. 230 immunity, depending on the scope and
> substance of the editing.  That's a legal question that I'm studiously
> avoiding investing the Foundation's donated funds in finding an answer
> to.  I'd rather see a richer defendant sort that one out for us.
>
On this point, I think I agree.

Anthony