Section 230 Experts Explain Twitter’s Hacked Materials Policy

Published on February 25, 2021

Twitter users noticed this week that the company has begun adding a warning label to posts that contain materials that could have been obtained through hacking. Hacked materials, which violate Twitter’s terms of use, have become a sensitive political topic ever since the company removed posts that published allegations against Hunter Biden last fall, when President Biden was on the campaign trail.

Many users expressed confusion as to why Twitter would add a warning label to posts that contain information that was potentially obtained through hacking. The removal of such posts last fall prompted widespread discourse on censorship on social media, and triggered an outpour of partisan comments on Twitter’s decision to censor a story from right-wing news sources. Many argued that the company removed the content because of its political affiliation during a heated election cycle. The company, however, argued that the distribution of hacked materials violated its terms and conditions, something that the company has the right to establish under Section 230 of the Communications Decency Act of 1996.

“Currently, Twitter is protected under Section 230 of the Communications Decency Act, which states that internet company is not treated as the publisher or speaker of the third party content,” says Kim Chan, the founder of DocPro, which offers legal resources to businesses. “However this is under US law and such exemption may not apply overseas. The revision came about after the UK media published such content through Twitter. By allowing for the distribution of hacked materials, Twitter may still be liable outside of the US as the distributor of such materials and may potentially be sued by the original owner of the hacked materials. As a result, Twitter makes it clear in their policy that they do not distribute such content and has a disclaimer to shield such content on their platform,” Chan says.

Because of Section 230, there are few things that an internet communications company like Twitter can be held liable for—but the distribution of hacked materials are one of the few becuase of the Computer Fraud and Abuse Act of 1986, which subjects individuals to prevent hacking. Naturally, because the internet is an ever-evolving web of ethical dilemmas, the Act has been amended several times to accommodate new issues as they’re presented.

The issue of distributing hacked materials is not new, and even came up a couple of years ago when the website Ashley Madison was targeted by hackers in what was one of the more scandalous data dumps of the last decade. “Social media companies such as Twitter are liable for the distribution of hacked materials to the extent of being nulled and void on a maximum,” says David Clark, a veteran lawyer practicing in Michigan. “In most cases, however, these companies will only be fined in large sums as civil and/or moral damages will be warranted to failure to prevent certain right violations caused by hacked material distribution through their services,” Clark says.

Twitter’s decision last fall to limit the spread of hacked materials was an editorial move, and one that the company was criticized for as its hacked materials policy is often hard to enforce. Section 230 also triggers an entirely different argument over whether tech companies like Twitter should be able to make editorial decisions, since the law explicitly refers to companies that do not act as publishers. Usually the hacked materials law addresses the spread of pirated materials, but it also poses a separate issue to journalists—a group that uses Twitter, arguably, the most.

“Firstly, recent events lead Twitter to reevaluate their hacked materials policy and how it affected the public,” says Peter Horne, a lawyer for Geoff McDonald & Associates. “They found that the policy could cause unintended harm to journalists’ attempts to distribute some information, which defeated the purpose of Twitter,” he says. The distribution of hacked materials by journalists is an entirely different argument and ethical dilemma, and one that is not new to the industry either. The gist of the issue is that media companies should make their own editorial decisions on the spread of hacked materials.

Twitter changed its hacked materials policy last fall after several Republican politicians argued that the company’s decision to remove the New York Post story signaled it would be comfortable censoring journalists. Many argued, though, that the alternative of allowing the content to stay up would pose additional issues if it turned out to impact the results of an election or enable foreign political interference.

“Secondly, when the policy was initially introduced, the platform had limited capabilities in terms of enforcement. This has since been updated, which allows Twitter to adjust their policy and create a platform which accommodates more individuals,” Horne says. Twitter’s new policy is to, instead, label hacked materials so that users can determine for themselves what to think of them. Posts that contain hacked materials that violate its terms and conditions in other ways, though, could still be taken down (like if the hacked materials are a deepfake, or compromise its civic integrity policy).

Julia Sachs is a former Managing Editor at Grit Daily. She covers technology, social media and disinformation. She is based in Utah and before the pandemic she liked to travel.

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