Igaming Focus: Hidden dangers in igaming in proposed revisions of Section 230? By Martin Owens, Attorney At Law, Special to CDC Gaming Reports October 29, 2020 at 11:30 am “When the elephants fight, it’s the grass that gets hurt.” African Proverb Martin Owens is a California attorney based in Sacramento, specializing in Internet and interactive gaming law since 1998. No doubt about it, the pixels are really hitting the fan now. Social-media titans Twitter and Facebook are being called to account for allegedly arbitrary and partisan abuse of their size and market structure, so much so as to amount to a de facto regime of propaganda and favoritism, even affirmative censorship toward politicians and policies they don’t like. In such a contentious and partisan environment as a national election, it’s predictable that the opposing parties disagree vehemently. But what’s a real surprise is that both sides, the GOP and the Democrats, agree that one particular federal law must be extensively revised, if not removed altogether. And that could be big trouble for the internet and interactive gaming, both gambling and non-gambling. The Protection and the Problem Section 230 of the Communications Decency Act provides a safe harbor for internet service providers and social media operators against legal liability for the content and messages which third parties post on their sites. This protection is a big reason for the explosive growth of services like Twitter and Facebook, as well as the internet itself. Suppose a resident of the state of California uses the internet to place bets on an NFL game. Maybe California will go after the online bookmaker (but probably not). Technically, the Golden State can also go after the California resident placing the bets (highly unlikely – unauthorized gambling is a misdemeanor for the player, and thereby not worth chasing). And at the moment California would not be able to go after the internet service provider that made it all possible. Section 230 declares that “… [n]o 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.” (47 U.S.C.§ 230 (c)). So long as the ISP or server doesn’t participate directly in running that foreign book, they’re probably in the clear. As a general rule, publishers may be held liable for the items they print and/or purvey to the public because publishers control their content – their writers write the stories and editors review them. Contrast this with the proprietor of a free bulletin board. Generally, the proprietor is held to a lighter, looser standard. After all, the proprietor has no control over what his patrons may put up. Of course, they’re pretty much expected to take down genuinely illegal or vile items as soon as they find out they’ve been posted. But can that open them up to charges of censorship and prejudice? Accusations of violating the First Amendment? Section 230 has already covered that. It goes on to absolve the service provider of any liability for removing content that it deems “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”. Hate Speech? Misinformation? Nevertheless, there is great pressure, even on giants such as Facebook and Twitter, to remove “offensive” material, or not allow it to be displayed on their sites at all. But the publisher/proprietor divide is a catch-22. The more a given outfit moderates, supervises, edits, or just censors its content, the more it will appear to be a publisher, possibly subject to libel and slander laws. But in today’s highly partisan, even vindictive political atmosphere, it can also be trouble to allow the display of material or opinions that somebody else considers “misinformation” or “hate speech”. And the pressure is on from both sides. Even as GOP senators and the Department of Justice consider legislation and rule changes for section 230, we see the left side of the aisle just as hostile towards this protection. Democratic presidential candidate Joe Biden has long called to remove Section 230 from the US Code altogether. Other Democrats want Section 230’s protections stripped away from service providers who don’t remove “demonstrably false” political ads fast enough. Just who will decide what content is false or misleading and what isn’t? A Chill on All Your Houses? Well-intentioned souls have proposed several bipartisan solutions which, true to form, seem to help nobody and may well pose a powerful threat to online gaming. The most prominent proposed act is known as Eliminating Abusive and Rampant Neglect of Interactive Technologies, or EARN IT (note: the cutesier the title, the more dangerous the law). While keeping in place the Section 230 protections for ISPs and proprietors who remove possibly objectionable material and entries, EARN IT would also create a new commission made up of federal officials and social media “experts”, tasked with issuing guidelines supposedly guaranteeing “best practices”. The ostensible aim is to go after child pornography. But service providers and proprietors would be required to certify that they are obeying these “best practices”, whatever these turn out to be. So it is easy to assume where the game goes from here. More and more “offensive” messaging would be included over time, and the list of taboo sites and businesses would inevitably expand. And gambling has always been a suspect industry, easy to demonize and suppress. So for the service provider, suppressing gaming of all kinds could be the path of least resistance. After all, even non-gambling games are often attacked as malign influences on youthful morality. “Grand Theft Auto” and other first-person action games have series have been blamed as instigators of adolescent crime and violence. Indeed, video games, in general, have been blamed for social ills of every kind, from increased obesity to poor social skills right through to altering players’ brain chemistry. The good news is that there is little chance of such slippery-slope prohibitions becoming federal law. The various proponents of such measures seem to focus on thwarting their political rivals, rather than ensuring half-imaginary virtues by legal coercion. A much more insidious side effect, however, must be guarded against- what the Supreme Court called a “chilling effect” on public discourse. That is, when people and organizations censor themselves even when it isn’t necessary, rather than face possible legal liability or even controversy. No matter which side they are on, American lawmakers and American voters need to realize that this government power is a sword with two edges. It will not only be opponents who suffer but all of us. It will be, as Chief Justice Rehnquist once remarked, “a chill on both your houses”.