What is Section 230 and Why is Trump Wrong About It?

What is Section 230 and Why is Trump Wrong About It?

We saw that Donald Trump was willing veto the 2021 Defense Appropriations bill and risk our nation’s security because Congress refused to include a provision in the bill that would cancel a law called “Section 230.” Of course, in late December 2020, Congress refused to give in and overrode Trump’s veto, funding the military and keeping Section 230 on the books. What was so important in Section 230 to inspire Trump’s hatred of it and why was it so important that even loyal Trump Republicans would incur Trump’s wrath and vote against him?

Trump was upset that Section 230 allowed internet service providers and social media companies to highlight and sometimes block the untruths he spewed about the election and other subjects. And now, of course, the companies have gone so far as to ban him entirely from Twitter, Facebook, and other sites. Trump used Twitter, in particular, as his primary communication tool to reach out to his followers. Section 230 gave the companies running the services like Twitter the right to restrict anyone, including Trump, from using their business to convey messages and information that they deemed “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Those words come directly out of Section 230.

Many people call Section 230 “the law that made the internet possible.” Besides being a broad statement of policy, Section 230 has two important operative provisions (among others). One of these provisions is the protection that Trump hates that Twitter used against him, and the other is a protection that, ironically, is the law that allows all web service companies to function freely, especially the alternative “free speech” sites like CloutHub, Parler, Gab and their cousins. If it were not for Section 230, the Internet as we know it in America and much of the social media world and political communication on the web would not exist. The Trump supporters who lambast the Big Tech social media companies for silencing them and Trump would not have any alternative if not for Section 230. As a side note, virtually every developed country has put into law some provision similar to Section 230.

Section 230’s full name is Title 47 United States Code Section 230. Subsection (c)(2) of Section 230 is Trump’s nemesis. (c)(2) provides that no service provider can be prevented from taking action against the restricted content mentioned above and removing it from its service. They can censor content they deem improper or dangerous. But, at the same time and very importantly, subsection (c)(1) provides that such provider is not to be considered “the publisher or speaker of any information provided by another information content provider.” That is, CloutHub, Parler and the other similar sites, if they want to, can allow Trump and his followers and anyone else they want to do business with to use their service and the company itself will not be held responsible for their words or the resultant deeds carried out by the service. If not for this second provision of Section 230 very few businesses could afford the legal liability of being the “publisher” of the untruths, bizarre communications and prurient information that creeps into social media sites and web portals. Thus, Trump’s hatred of Section 230 is illogical and ultimately self-destructive of his communications goals and his followers freedom to say what they want without restriction, somewhere.

Section 230 is indeed the law that lets Facebook, Twitter, Instagram, Google, Yahoo, and every other major and minor internet service provider let others use their services to communicate, advertise, cajol, plead, show-off, entice and whatever else they want to do on the web without the business entity being held legally liable for what other people put out via their service.

Far from being a hated tool against free speech that Trump claimed it was, it turns out the Section 230 is the heart and soul of a free and active internet. It allows a company on the Internet to both handle any information it wishes and it allows them to use their best judgment as to what is socially and ethically appropriate to be conveyed with their business resources. It allows users to find businesses who can convey their message without being fearful that every action of those users could bring legal consequences to the businesses.

A full text of Section 230 follows:

47 U.S. Code § 230 – Protection for private blocking and screening of offensive material
(a)FINDINGSThe Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b)POLICY It is the policy of the United States—
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(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).[1]
(d) OBLIGATIONS OF INTERACTIVE COMPUTER SERVICE
A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
(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 LAWNothing 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.
(f)DEFINITIONSAs used in this section:
(1)INTERNET
The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2)INTERACTIVE COMPUTER SERVICE
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3)INFORMATION CONTENT PROVIDER
The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4)ACCESS SOFTWARE PROVIDERThe term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A)
filter, screen, allow, or disallow content;
(B)
pick, choose, analyze, or digest content; or
(C)
transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(June 19, 1934, ch. 652, title II, § 230, as added Pub. L. 104–104, title V, § 509, Feb. 8, 1996, 110 Stat. 137; amended Pub. L. 105–277, div. C, title XIV, § 1404(a), Oct. 21, 1998, 112 Stat. 2681–739; Pub. L. 115–164, § 4(a), Apr. 11, 2018, 132 Stat. 1254.)

What Criminal Law Did the US Capitol Attackers Violate?

What Crimes Did the Capitol Attackers Commit?

There are many misdemeanor and felony charges that prosecutors can charge those entering the Capitol with, such as criminal trespass, assault, etc. There is also speculation that since the assault resulted in deaths, that many could also be charged under the felony murder rule that says that anyone committing a felony which results in a loss of life is guilty of “felony murder.” However, I want to highlight one law that seems particularly appropriate, easy to determine and prosecute and which every person who entered the Capitol is guilty of.

That law is, Title 18 US Code Section 1752, which makes it a federal felony to enter a “restricted building.”

But, that does not mean the Capitol itself, it means a building where a person under the protection of the US Secret Service is located. So, the fact the Vice-President Pence was in the Capitol under the protection of his Secret Service detail when people entered the building without permission is a most serious federal crime. And since, both weapons were present and serious bodily injury resulted, the penalty for such a violation is up to ten years in federal prison. This would also be very easy to prove, all you need is the evidence of the unlawful presence and actions (lots of videos) and simple evidence that they had no permission.

Every person who entered through those broken windows and the battered down doors, can be sent to prison for up to ten years. Even under lesser included charges, it is a year in prison.

The full text of the Federal criminal statute follows:
Section 1752 of title 18, United States Code.

“Sec. 1752. Restricted building or grounds

(a) Whoever–
“(1) knowingly enters or remains in any restricted building
or grounds without lawful authority to do so;
“(2) knowingly, and with intent to impede or disrupt the
orderly conduct of Government business or official functions,
engages in disorderly or disruptive conduct in, or within such
proximity to, any restricted building or grounds when, or so
that, such conduct, in fact, impedes or disrupts the orderly
conduct of Government business or official functions;
“(3) knowingly, and with the intent to impede or disrupt
the orderly conduct of Government business or official
functions, obstructs or impedes ingress or egress to or from any
restricted building or grounds; or
“(4) knowingly engages in any act of physical violence
against any person or property in any restricted building or
grounds;or attempts or conspires to do so,
shall be punished as provided in subsection (b).

(b) The punishment for a violation of subsection (a) is–
“(1) a fine under this title or imprisonment for not more
than 10 years, or both, if–
“(A) the person, during and in relation to the
offense, uses or carries a deadly or dangerous weapon or
firearm; or
“(B) the offense results in significant bodily
injury as defined by section 2118(e)(3); and
“(2) a fine under this title or imprisonment for not more
than one year, or both, in any other case.

“(c) <> In this section–
“(1) the term ` Section 1752 of title 18, United States Code, is amended to read as
follows:
“Sec. 1752. Restricted building or grounds

“(a) Whoever–
“(1) knowingly enters or remains in any restricted building
or grounds without lawful authority to do so;
“(2) knowingly, and with intent to impede or disrupt the
orderly conduct of Government business or official functions,
engages in disorderly or disruptive conduct in, or within such
proximity to, any restricted building or grounds when, or so
that, such conduct, in fact, impedes or disrupts the orderly
conduct of Government business or official functions;
“(3) knowingly, and with the intent to impede or disrupt
the orderly conduct of Government business or official
functions, obstructs or impedes ingress or egress to or from any
restricted building or grounds; or
“(4) knowingly engages in any act of physical violence
against any person or property in any restricted building or
grounds;

or attempts or conspires to do so, shall be punished as provided in
subsection (b).
“(b) The punishment for a violation of subsection (a) is–
“(1) a fine under this title or imprisonment for not more
than 10 years, or both, if–
“(A) the person, during and in relation to the
offense, uses or carries a deadly or dangerous weapon or
firearm; or
“(B) the offense results in significant bodily
injury as defined by section 2118(e)(3); and
“(2) a fine under this title or imprisonment for not more
than one year, or both, in any other case.

“(c) <> In this section–

[[Page 126 STAT. 264]]

“(1) the term `restricted buildings or grounds’ means any
posted, cordoned off, or otherwise restricted area–
“(A) of the White House or its grounds, or the Vice
President’s official residence or its grounds;
“(B) of a building or grounds where the President
or other person protected by the Secret Service is or
will be temporarily visiting; or
“(C) of a building or grounds so restricted in
conjunction with an event designated as a special event
of national significance; and
“(2) the term `other person protected by the Secret
Service’ means any person whom the United States Secret Service
is authorized to protect under section 3056 of this title or by
Presidential memorandum, when such person has not declined such
protection.”.
grounds’ means any
posted, cordoned off, or otherwise restricted area–
“(A) of the White House or its grounds, or the Vice
President’s official residence or its grounds;
“(B) of a building or grounds where the President
or other person protected by the Secret Service is or
will be temporarily visiting; or
“(C) of a building or grounds so restricted in
conjunction with an event designated as a special event
of national significance; and
“(2) the term `other person protected by the Secret
Service’ means any person whom the United States Secret Service
is authorized to protect under section 3056 of this title or by
Presidential memorandum, when such person has not declined such
protection.”.

The 25th Amendment – A User’s Guide – How to Remove a U.S. President from Office

The 25th Amendment – A User’s Guide
The 25th Amendment of the US Constitution contains a provision wherein the Vice-President can assume the duties of the President if the Vice-President deems the President incapable of carrying out the duties of office. The Constitutional provision designates a “majority of the executive officers” (the Cabinet) as those who must agree with the Vice-President. The constitutional clause then passes the matter to Congress to write a statute to carry out that action.

That statute is 3 US Code Section 19, the Presidential Succession Act.

The current version of the Act lists the Cabinet officer who are in line for succession to the presidency, via a majority of them agreeing with the Vice-President, can support the Vice-President in taking over the duties of President. Those designated Cabinet officers are:
• Secretary of State
• Secretary of the Treasury,
• Secretary of Defense,
• Attorney General,
• Secretary of the Interior,
• Secretary of Agriculture,
• Secretary of Commerce,
• Secretary of Labor,
• Secretary of Health and Human Services,
• Secretary of Housing and Urban Development,
• Secretary of Transportation,
• Secretary of Energy,
• Secretary of Education,
• Secretary of Veterans Affairs,
• Secretary of Homeland Security.

However, only persons in these offices who have been appointed and have been confirmed in office by the US Senate are eligible to form the majority. Given the number of vacancies Trump has in his Cabinet, this might seem to be a problem, but the Constitution says a “Majority” can act, so that would be a majority of the officers eligible, excluding “Acting” Secretaries.

So, The Vice-President needs to get the support of a majority of the above list of cabinet officers behind him and file notice with Senator Grassley (Senate President Pro-Tem) and Speaker Nancy Pelosi and upon that notice the Vice-President takes over the duties as President.

There is a provision whereby Congress could act to support or oppose this action and to hear an appeal by the President. However, that would probably not occur in the next fourteen days.

That is how Vice-President Pence can remove Donald Trump from office.

There are lots of other details, but that covers the basics.