Another Casualty If Section 230 Gets Repealed: Food Safety Data

I’m a latecomer to the whole “podcasts” phenomenon. I didn’t start listening to them until 2020, when the pandemic suddenly gave me the free time and the incentive to get out of my small apartment and go on long walks. That’s my excuse for only recently discovering “Maintenance Phase,” a terrific podcast that “debunks and decodes” the wellness and weight-loss industries. 

Last week, I (finally) listened to a November episode about a food-poisoning outbreak last year among customers of meal-kit startup the Daily Harvest. I had good timing, as it happens: the FDA just released a report about the incident. According to FDA data (which may understate the outbreak’s extent), nearly 400 people were sickened nationwide, of whom a whopping one-third were hospitalized; some even had to have their gallbladders removed. 

How did this outbreak come to light? The Internet. News outlets covered the incident after numerous people posted to Reddit and a social-media influencer posted to TikTok, all with similar horror stories. According to NPR, Twitter and Instagram users also contributed to the groundswell of data that all pointed to a particular dish (a lentil & leek “crumble”). By sharing their stories on social media, those affected were able to put two and two together, and to call on the company and the FDA to respond.

One thing I learned from the podcast was that, even though the FDA is the federal agency responsible for the safety of the nation’s food supply, when Americans report being sickened by food they’ve consumed, those reports go to state agency investigators. As “Maintenance Phase” pointed out, that means it can be difficult to see the nationwide forest for the state-by-state trees: Food-safety incidents in different states may all come from the same source, but the links between different states’ outbreaks may be non-obvious or slow to come to light.

That’s part of what made the postings to Reddit and other social media sites so important. Those platforms allowed affected Daily Harvest customers to share their experiences, connect with others – and warn everyone else not to eat the culprit dish, beating the company and the FDA to the punch. Important food-safety information reached the general public quickly, while providing data points about the scope, reach, and severity of the outbreak. 

And Section 230 is the reason that could happen.

Businesses hate negative online reviews. That’s true whether it’s a major multinational corporation or your local dentist’s office. And for years, they’ve shown their contempt for their customers: first by providing subpar products, services, or customer experiences, then by trying to silence dissatisfied customers from telling others. They’ve pulled every nasty legal trick in the book, from claiming that “gripe sites” infringe their trademarks to inserting “non-disparagement” clauses in their customer contracts. It got so bad that Congress, which can’t even reliably keep the government running, took action in 2016 by outlawing these unconscionable contract clauses. Federal government intervention was necessary because businesses have zero scruples about suing their own customers. 

Fortunately, however, they can’t sue the platforms that host those customers’ complaints. Section 230 is the law that immunizes consumer review outlets, social media platforms, and any other website that hosts user-generated content from (potentially ruinous) liability for their users’ postings. Yelp, Amazon reviews, Angi (f/k/a Angie’s List), Google Maps reviews: all of those platforms are protected by Section 230, which applies to both user reviews they leave up and those they take down. 

Without 230, consumer review sites would be on the hook whether they moderated user postings or not. Businesses could sue for libel over negative reviews that stayed online. (Indeed, Section 230 was Congress’s response to a court decision over a defamation claim.) But if the site took down all negative reviews in order to avoid libel suits, then harmed consumers could sue them for negligence for removing information that might otherwise have warned them away from an unsanitary restaurant or incompetent construction firm. 

Make no mistake, Reddit is notorious for hosting a ton of awful speech. When playing amateur detective, its users have been terribly wrong in the past. But this time, they were right. An ingredient in the Daily Harvest’s lentil & leek crumble really did sicken hundreds of people. And thanks to Section 230, Reddit, Twitter, Instagram, and TikTok didn’t have to fear the Daily Harvest might sue them, so they didn’t have any incentive to take those posts down.

Online reviews aren’t just guideposts for other consumers. They’re data that can be very valuable in the hands of government agencies charged with protecting the public and doing scientific research. That might be food safety regulators investigating consumer complaints; it can also be the USGS tracking Twitter mentions of earthquakes. 

If Section 230 gets repealed, the San Andreas Fault won’t threaten to sue Twitter when a user mistakes a dump truck for a temblor. But users’ accounts of suffering harm from consumer products and services would suddenly become a liability for the websites hosting them – so that valuable data might be silenced. 

Without 230, as said, content moderation becomes “damned if you do, damned if you don’t.” The only surefire way to avoid getting sued is to shut down the forum hosting all of that user speech, just in case some of the speech might expose the forum owner to liability. That’s exactly what happened the moment Congress passed a carve-out from Section 230 for certain material back in 2018. If Congress (or the Supreme Court) keeps tinkering with the statute, we can expect a lot more user speech forums, carrying a lot of socially-beneficial speech, to be shuttered for good. And that’s what really makes me feel sick to my stomach.

Riana Pfefferkorn is a Research Scholar at the Stanford Internet Observatory. She promises this post is not spon-con for “Maintenance Phase” (or The Daily Harvest).