The United States Capitol Building on a sunny day in Washington, D.C.
The United States Capitol Building on a sunny day in Washington, D.C. / Stephen Gutowski

Analysis: How Section 230 Reform Is Just the Latest Attempt to Impose Civil Liability On the Gun Industry [Member Exclusive]

Section 230, the legislative bugaboo of Republicans and Democrats alike, has become entangled with gun control.

Senate Bill 2725 was officially introduced by Senator Richard Blumenthal (D., Conn.) this week. Entitled the Accountability for Online Firearms Marketplaces Act of 2021, the bill would remove Section 230 protections for any online service that facilitates transactions of firearms or firearm accessories, hosts listings of private person-to-person sales, or that posts 3D-gun files or instructions on how to complete unfinished receivers.

Debate surrounding Section 230 of the 1996 Communications Decency Act is most notably associated with social media, with opponents across the political spectrum accusing it of either providing legal cover for big tech companies to censor conservatives or to spread misinformation, depending on who you ask.

What the provision actually says is “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.” In other words, online service providers aren’t liable for third-party content posted on their websites just because they might moderate it.

According to the sponsors of the bill, the attempt to remove this civil liability shield from online firearms marketplaces is a way to prevent people prohibited from owning a firearm from obtaining them online.

“It’s time to start holding accountable those who turn a blind eye to illegal gun sales on their platforms,” Senator Dianne Feinstein (D., Calif.), a co-sponsor of the bill, said in a press release. “The only way to reduce the scourge of gun violence plaguing our communities is to close loopholes that allow prohibited people to obtain guns.”

The misuse of the word loophole aside, let’s say Senator Feinstein’s comments are truthful and the goal of the bill really is to reduce the ability for prohibited possessors to obtain firearms. The text of the bill says:

Every year, unlicensed sellers post more than 1,000,000 advertisements on online firearms marketplaces in States that do not legally require a background check. Individuals with criminal histories and other prohibited purchasers rely on these postings to evade basic background check laws and procure firearms. One study found that nearly 1 in 9 prospective gun buyers who respond to advertisements from unlicensed sellers on a major online firearms marketplace would not pass a background check, which is a rate that is 7 times higher than the denial rate in contexts where background checks are required.

The bill does not provide a citation for the referenced study, but again we’ll say for argument’s sake that the claim is accurate. Even with those concessions made, it seems a more efficient strategy would be to target those clearly identifiable individuals who are attempting to skirt federal law by unlawfully seeking a firearm, rather than punishing lawful online marketplaces.

The inclusion of the study itself gives away the inefficiency of the strategy. The study identified that nearly 1 in 9, less than 11 percent, of all prospective buyers were allegedly seeking to obtain a gun unlawfully. While 11 percent is certainly not nothing, it highlights the misallocation of legislative attention involved in pursuing regulations against a class of websites where nearly 90 percent of the activity is lawful commerce, by their own study’s admission.

The reason that the amount of identified criminality on these sites is so low is because we’ve known for a long time that criminals by and large do not obtain their firearms this way. One study from the University of Pittsburgh found that in nearly 80% of all gun crimes, the perpetrator was in possession of a weapon that legally belonged to someone else. Another study from the Bureau of Justice Statistics surveyed state and federal prisoners and found that the incidence of guns being obtained online was too rare to be given its own category. Instead, it was grouped into the “other” source category where it was associated with less than six percent of the inmates surveyed.

All this is to say that a bill repealing civil liability from online firearms marketplaces will not have any meaningful impact on criminals obtaining firearms. Criminals by and large obtain their weapons from theft, the black market, and straw purchases involving people close to them.

Instead, the bill is likely to have a chilling effect on internet speech and lawful online commerce in firearms and accessories. Online gun marketplaces, such as Armslist, will be much less likely to facilitate postings for gun sales among its users if it knows at any moment it could be sued if a gun turns up in a crime.

Evidence of this can be seen in similar websites following previous Section 230 repeal bills. In 2017, Congress passed the Stop Enabling Sex Trafficking Act (SESTA) which created a new Section 230 carve-out for sex-trafficking-related content posted by third parties. The act was passed specifically to target sex-traffickers online, but it also had the unintended consequence of affecting platforms—like Reddit and Craigslist— not engaged in such content who simply wanted to shield themselves from liability from posts that escaped the oversight of their moderators.

Luckily for Reddit and Craigslist, removing certain pages was enough to solve their problems. Their websites deal with a multitude of content and commercial activity outside the scope of SESTA. Online marketplaces like Armslist are not so fortunate in that their entire business model would be subject to civil liability under S. 2725, making it extremely likely those sites could be left with no other choice than to shut down permanently.

This is probably the actual goal of the bill. Lawmakers are aware of the aversion businesses have to costly lawsuits. The same logic is at play in the push to repeal the Protection of Lawful Commerce in Arms Act (PLCAA), which shields gun makers and dealers from liability over the misuse of their products by third parties. It is likely that opening up gun makers and sellers to lawsuits on multiple fronts will create a war of attrition. As legal costs mount, gun companies will be put out of business and gun sales will decrease.

It is important to note that with the current make-up of the Senate, and the fierce resistance to gun control shown by elected Republicans, the odds of this bill going anywhere are very slim. However, it is not unreasonable to imagine a similar bill reappearing in a future Congress with clearer majorities. It should also serve as a warning to many Republicans, some of whom have previously called for blanket Section 230 repeals, about the unintended consequences of such a political strategy.

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Created by potrace 1.16, written by Peter Selinger 2001-2019


Created by potrace 1.16, written by Peter Selinger 2001-2019

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