WASHINGTON, August 20, 2019 — Section 230 of the Communications Decency Act has been termed one of the most important and most misunderstood laws governing the internet.
In recent months, prominent critics from both sides of the aisle have called for the statute to either be repealed or altered so significantly that, if enacted, it would no longer serve its original purpose.
Sen Josh Hawley, R-Mo., introduced a bill that would eliminate Section 230 protections for big tech platforms unless they could prove their political neutrality to the Federal Trade Commission every two years. Sen. Ted Cruz, R-Texas, has called for the statute to be repealed altogether.
But any such proposal should first carefully consider Section 230’s unique role in the digital ecosystem.
The concept behind Section 230 has its origins in the First Amendment
The statute’s basic premise — protecting the rights of speakers by limiting the liability of third parties who enable them to reach an audience — is hardly new; the First Amendment has served that purpose for decades.
In the 1959 case Smith v. California, the Supreme Court ruled that booksellers could not be held liable for obscene content in the books being sold, because the resulting confusion and caution would lead to over-enforcement, or “censorship affecting the whole public.”
Five years later, the court ruled in New York Times Co v. Sullivan that failing to protect newspapers from liability for third party advertisements would discourage them from doing so, and therefore shut off “an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities.”
“In theory, the First Amendment — the global bellwether protection for free speech — should partially or substantially backfill any reductions in Section 230’s coverage,” wrote Eric Goldman, a law professor at Santa Clara University, in an April blog post. “In practice, the First Amendment does no such thing.”
In a paper titled “Why Section 230 Is Better Than the First Amendment,” Goldman explained some of the “significant and irreplaceable substantive and procedural benefits” that are unique to the controversial statute.
Section 230 has pragmatic applications for a range of legal claims
For one, Section 230 has pragmatic applications for defamation, negligence, deceptive trade practices, false advertising, intentional infliction of emotional distress, and dozens of other legal doctrines, some of which have little or no First Amendment defense.
In addition, Section 230 offers more procedural protections and greater legal certainty for defendants. It enables early dismissals, which can save smaller services from financial ruin. It is more predictable than the First Amendment for litigants. It preempts conflicting state laws and facilitates constitutional avoidance.
Most major tech platforms support Section 230, and experts widely agree that the internet would not have been able to develop without the protection of such a law.
“If we were held liable for everything that the users potentially posted…we fundamentally would not be able to exist,” said Jessica Ashooh, Reddit’s director of policy, at a July forum.
But also in July, one prominent tech company broke with the others to support a “reasonable care” standard like that proposed by Danielle Citron and Benjamin Wittes, law professors at the University of Maryland. IBM Executive Ryan Hagemann wrote in a blog post that this “would provide strong incentives for companies to limit illegal and illicit behavior online, while also being flexible enough to promote continued online innovation.”
Should online platforms be responsible for deleting objectively harmful content?
Companies should be held legally responsible for quickly identifying and deleting content such as child pornography or the promotion of mass violence or suicide, Hagemann continued. Adding this standard to Section 230 “would add a measure of legal responsibility to what many platforms are already doing voluntarily.”
But Goldman took a different tack. He strongly cautioned against proposals offering Section 230 protections only to defendants who were acting in so-called good faith, warning that “such amorphous eligibility standards would negate or completely eliminate Section 230’s procedural benefits.”
Hagemann, on the other hand, has defended the importance of a compromise-oriented middle ground. Current rhetoric from Congress suggests that changes to the statue are imminent, he said at a panel two weeks after IBM’s statement, and finding a compromise will prevent an extreme knee-jerk reaction from lawmakers who may not view the digital economy with the necessary nuance.
Senators Cruz and Hawley are gunning for effective repeal of Section 230
And as feared, members of Congress such as Cruz and Hawley have skipped right over compromise and started calling for the complete evisceration of Section 230.
Few would claim that Section 230 is perfect; it was written for a digital landscape that has since evolved in previously unimaginable ways. But allowing a body of five commissioners to determine the vague standard of “politically neutral” every two years would almost certainly lead to extreme inconsistency and partisanship.
Moreover, some fear that — contrary to Hawley’s stated intent — his bill might actually be the one thing that cements the major tech giants in their current place of power.
“Even if its initial application were limited to websites above a certain size threshold, that threshold would be inherently arbitrary and calls to lower it to cover more websites would be inevitable,” said TechFreedom President Berin Szóka.
Rather than keeping tech giants like Facebook and Google in check, conditioning Section 230 protections on perceived neutrality could actually benefit them by stifling any potential competition.
“At a time when we’re talking about antitrust investigations and we’re wondering if the biggest players are too big, the last thing we want to do is make a law that makes it harder for smaller companies to compete,” said Ashooh of Reddit.
“Admittedly, it feels strange to tout Section 230’s pro-competitive effect in light of the dominant marketplace positions of the current Internet giants, who acquired their dominant position in part due to Section 230 immunity,” wrote Goldman. “At the same time, it’s likely short-sighted to assume that the Internet industry has reached an immutable configuration of incumbents.”
Other articles in this series:
Section I: The Communications Decency Act is Born
Former GOP Congressman and UK MP Highlight Dangers of Disinformation and Urge Regulation
Will Hurd and Member of Parliament Damien Collins say disinformation on social media platforms a worry in midterm elections.
WASHINGTON, January 11, 2022 – Former Republican Rep. Will Hurd said that disinformation campaigns could have a very concerning effect on the upcoming midterm elections.
He and the United Kingdom’s Member of Parliament Damien Collins urged new measures to hold tech and social media companies accountable for disinformation.
Hurd particularly expressed concern about how disinformation sows doubts about the legitimacy of the elections and effective treatments to the COVID-19 virus. The consequences of being misinformed on these topics is quite significant, he and Collins said Tuesday during a webinar hosted by the Washington Post.
The Texan Hurd said that the American 2020 election was the most secure the nation has ever had, and yet disinformation around it led to the insurrection at the Capitol.
The British Collins agreed that democratic elections are particularly at risk. Some increased risk comes from ever-present disinformation around COVID and its effects on public health and politics. “A lack of regulation online has left too many people vulnerable to abuse, fraud, violence, and in some cases even loss of life,” he said.
In regulating tech and media companies, Collins said citizens are reliant on whistleblowers, investigative journalists, and self-serving reports from companies that manipulate their data.
Unless government gets involved, they said, the nation will remain ignorant of the spread of disinformation.
Tech companies need to increase their transparency, even though that is something they are struggling to do.
Yet big tech companies are constantly conducting research and surveillance on their audience, the performance of their services, and the effect of their platforms. Yet they fail to share this information with the public, and he said that the public has a right to know the conclusions of these companies’ research.
In addition to increasing transparency and accountability, many lawmakers are attempting to grapple with the spread of disinformation. Some propose various changes to Section 230 of the Telecom Act of 1996.
Hurd said that the issues surrounding Section 230 will not be resolved before the midterm elections, and he recommended that policy-makers take steps outside of new legislation.
For example, the administration of President Joe Biden could lead its own federal reaction to misinformation to help citizens differentiate between fact and fiction, said Hurd.
Greene, Paul Social Media Developments Resurface Section 230 Debate
Five days into the new year and two developments bring Section 230 protections back into focus.
WASHINGTON, January 5, 2022 – The departure of Republican Kentucky Senator Rand Paul from YouTube and the banning of Georgia Republican Representative Marjorie Taylor Greene from Twitter at the beginning of a new year has rekindled a still lit flame of what lawmakers will do about Section 230 protections for Big Tech.
Paul removed himself Monday from the video-sharing platform after getting two strikes on his channel for violating the platform’s rules on Covid-19 misinformation, saying he is “[denying] my content to Big Tech…About half of the public leans right. If we all took our messaging to outlets of free exchange, we could cripple Big Tech in a heartbeat.”
Meanwhile, Greene has been permanently suspended from Twitter following repeated violations of Twitter’s terms of service. She has previously been rebuked by both her political opponents and allies for spreading fake news and mis/disinformation since she was elected in 2020. Her rap sheet includes being accused of spreading conspiracy theories promoting white supremacy and antisemitism.
It was ultimately the spreading of Covid-19 misinformation that got Greene permanently banned from Twitter on Sunday. She had received at least three previous “strikes” related to Covid-19 misinformation, according to New York Times. Greene received a fifth strike on Sunday, which resulted in her account’s permanent suspension.
Just five days into the new year, Greene’s situation – and the quickly-followed move by Paul – has reignited the tinderbox that is Section 230 of the Communications Decency Act, which shields big technology platforms from any liability from posts by their users.
As it stands now, Twitter is well within its rights to delete or suspend the accounts of any person who violates its terms of service. The right to free speech that is protected by the First Amendment does not prevent a private corporation, such as Twitter, from enforcing their rules.
In response to her Tweets, Texas Republican Congressman Dan Crenshaw called Greene a “liar and an idiot.” His comments notwithstanding, Crenshaw, like many conservative legislators, has argued that social media companies have become an integral part of the public forum and thus should not have the authority to unilaterally ban or censor voices on their platforms.
Some states, such as Texas and Florida, have gone as far as making it illegal for companies to ban political figures. Though Florida’s bill was quickly halted in the courts, that did not stop Texas from trying to enact similar laws (though they were met with similar results).
Crenshaw himself has proposed federal amendments to Section 230 for any “interactive computer service” that generates $3 billion or more in annual revenue or has 300 million or more monthly users.
The bill – which is still being drafted and does not have an official designation – would allow users to sue social media platforms for the removal of legal content based on political views, gender, ethnicity, and race. It would also make it illegal for these companies to remove any legal, user generated content from their website.
Under Crenshaw’s bill, a company such as Facebook or Twitter could be compelled to host any legal speech – objectionable or otherwise – at the risk of being sued. This includes overtly racist, sexist, or xenophobic slurs and rhetoric. While a hosting website might be morally opposed to being party to such kinds of speech, if said speech is not explicitly illegal, it would thus be protected from removal.
While Crenshaw would amend Section 230, other conservatives have advocated for its wholesale repeal. Sen. Lindsey Graham, R-South Carolina, put forward Senate Bill 2972 which would do just that. If passed, the law would go into effect on the first day of 2024, with no replacement or protections in place to replace it.
Consequences of such legislation
This is a nightmare scenario for every company with an online presence that can host user generate content. If a repeal bill were to pass with no replacement legislation in place, every online company would suddenly become directly responsible for all user content hosted on their platforms.
With the repeal of Section 230, websites would default to being treated as publishers. If users upload illegal content to a website, it would be as if the company published the illegal content themselves.
This would likely exacerbate the issue of alleged censorship that Republicans are concerned about. The sheer volume of content generated on platforms like Reddit and YouTube would be too massive for a human moderating team to play a role in.
Companies would likely be forced to rely on heavier handed algorithms and bots to censor anything that could open them to legal liability.
Republicans are not alone in their criticism of Section 230, however. Democrats have also flirted with amending or abolishing Section 230, albeit for very different reasons.
Many Democrats believe that Big Tech uses Section 230 to deflect responsibility, and that if they are afforded protections by it, they will not adjust their content moderation policies to mitigate allegedly dangerous or hateful speech posted online by users with real-world consequences.
Some Democrats have written bills that would carve out numerous exemptions to Section 230. Some seek to address the sale of firearms online, others focus on the spread of Covid-19 misinformation.
Some Democrats have also introduced the Safe Tech Act, which would hold companies accountable for failing to “remove, restrict access to or availability of, or prevent dissemination of material that is likely to cause irreparable harm.”
The reality right now is that two parties are diametrically opposed on the issue of Section 230.
While Republicans believe there is unfair content moderation that disproportionately censors conservative voices, Democrats believe that Big Tech is not doing enough to moderate their content and keep users safe.
Experts Warn Against Total Repeal of Section 230
Panelists note shifting definition of offensive content.
Experts emphasized that it is not possible for platforms to remove from their site all content that people may believe to be dangerous. They argue that Section 230 of the Communications Decency Act, which shields platforms from legal liability with respect to what their users post, is necessary in at least some capacity.
During discussion between these experts at Broadband Breakfast’s Live Online Event on Wednesday, Alex Feerst, the co-founder of the Digital Trust and Safety Partnership, who used to work as a content moderator, said that to a certain extent it is impossible for platforms to moderate speech that is “dangerous” because every person has differing opinions about what speech they consider to be dangerous. He says it is this ambiguity that Section 230 protects companies from.
Still, Feerst believes that platforms should hold some degree of liability for the content of their sites as harm mitigation with regards to dangerous speech is necessary where possible. He believes that the effects of artificial intelligence’s use by platforms makes some degree of liability even more essential.
Particularly with the amount of online speech to be reviewed by moderators in the internet age, Feerst says the clear-cut moderation standards are too messy and expensive to be viable options.
Matt Gerst, vice president for legal and policy affairs at the Internet Association, and Shane Tews, nonresident senior fellow at the American Enterprise Institute, also say that while content moderation is complex, it is necessary. Scott McCollough, attorney at McCollough Law Firm, says large social media companies like Facebook are not the causes of all the problems with social media that are in the national spotlight right now, but rather that social features of today’s society, such as the extreme prevalence of conflict, are to blame for this focus on social media.
Proposals for change
Rick Lane, CEO of Iggy Ventures, proposes that reform of Section 230 should include a requirement for social media platforms to make very clear what content is and is not allowed on their sites. McCullough echoed this concern, saying that many moderation actions platforms take presently do not seem to be consistent with those platforms’ stated terms and conditions, and that individual states across the nation should be able to look at these instances on a case-by-case basis to determine whether platforms fairly apply their terms and conditions.
Feerst highlighted the nuance of this issue by saying that people’s definitions of “consistent” are naturally subjective, but agrees with McCullough that users who have content removed should be notified of such, as well as the reasoning for moderators’ action.
Lane also believes that rightfully included in the product of Section 230 reform will be a requirement for platforms to demonstrate a reasonable standard of care and moderate illegal and other extremely dangerous content on their sites. Tews generally agreed with Lane that such content moderation is complex, as she sees a separation between freedom of speech and illegal activity.
Gerst highlighted concerns from companies the Internet Association represents that government regulation coming from Section 230 reform will require widely varied platforms to standardize their operation approaches, diminishing innovation on the internet.
Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. You can watch the November 17, 2021, event on this page. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.
Wednesday, November 17, 2021, 12 Noon ET — The Changing Nature of the Debate About Social Media and Section 230
Facebook is under fire as never before. In response, the social-networking giant has gone so far as to change its official name, to Meta (as in the “metaverse”). What are the broader concerns about social media beyond Facebook? How will concerns about Facebook’s practices spill over into other social media networks, and to debate about Section 230 of the Communications Act?
Panelists for this Broadband Breakfast Live Online session:
- Scott McCullough, Attorney, McCullough Law Firm
- Shane Tews, Nonresident Senior Fellow, American Enterprise Institute
- Alex Feerst, Co-founder, Digital Trust & Safety Partnership
- Rick Lane, CEO, Iggy Ventures
- Matt Gerst, VP for Legal & Policy Affairs, Internet Association
- Drew Clark (moderator), Editor and Publisher, Broadband Breakfast
- Where is Our Intellectual Immune System?, by Alex Feerst in Cato Unbound
- A New Hope For Moderation And Its Discontents?, by Alex Feerst in Techdirt
- Your Speech, Their Rules: Meet the People Who Guard the Internet, by Alex Fierst in OneZero
- Content Moderation: Section 230 Of The Communications Decency Act, from Matt Gerst, by the Internet Association
- A Path Forward For Section 230, from Matt Gerst, by K. Dane Snowden of the Internet Association
- The Reality Of Revoking Section 230, from Matt Gerst, by Jon Berroya of the Internet Association
- Consumers Rely On Section 230 For Holiday Shopping, from Matt Gerst, by the Internet Association
- A co-author of Section on the law’s past, present, and future (with former Rep. Chris Cox), a podcast by Shane Tews from AEI
- Should Section 230 be reformed? (with Neil Fried), a podcast by Shane Tews from AEI
- Antiquated CDA 230 Immunity for TikTok Could Aid China’s Secret Efforts to Undermine U.S. Cyber-Security, by Rick Lane
- CDA 230, Frankenstein, Oppenheimer and the Social Dilemma, by Rick Lane
- Text of Section 230, “Protection for private blocking and screening of offensive material”
- On Regulating Social-Media Platforms, Follow Texas, Not Florida, by Clare Morell in National Review
- Broadband Breakfast Live Online Launches Series on Section 230: Separating Fact from Fiction, 3-Part Series in July 2020
W. Scott McCollough has practiced communications and Internet law for 38 years, with a specialization in regulatory issues confronting the industry. Clients include competitive communications companies, Internet service and application providers, public interest organizations and consumers.
Shane Tews is a nonresident senior fellow at the American Enterprise Institute (AEI), where she works on international communications, technology and cybersecurity issues, including privacy, internet governance, data protection, 5G networks, the Internet of Things, machine learning, and artificial intelligence. She is also president of Logan Circle Strategies.
Alex Feerst is a lawyer and technologist focused on building systems that foster trust, community, and privacy. He leads Murmuration Labs, which helps tech companies address the risks and human impact of innovative products, and co-founded the Digital Trust & Safety Partnership, the first industry-led initiative to establish best practices for online trust and safety. He was previously Head of Legal and Head of Trust and Safety at Medium, General Counsel at Neuralink, and currently serves on the editorial board of the Journal of Online Trust & Safety, and as a fellow at Stanford University’s Center for Internet and Society.
Rick Lane is a tech policy expert, child safety advocate, and the founder and CEO of Iggy Ventures. Iggy advises and invests in companies and projects that can have a positive social impact. Prior to starting Iggy, Rick served for 15 years as the Senior Vice President of Government Affairs of 21st Century Fox.
Matt Gerst is the Vice President for Legal & Policy Affairs and Associate General Counsel at Internet Association, where he builds consensus on policy positions among IA’s diverse membership of companies that lead the internet industry. Most recently, Matt served as Vice President of Regulatory Affairs at CTIA, where he managed a diverse range of issues including consumer protection, public safety, network resiliency, and universal service. Matt received his J.D. from New York Law School, and he served as an adjunct professor of law in the scholarly writing program at the George Washington University School of Law.
Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.
As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.
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- Federal Communications Commissioner Starks Seeks to Encourage Democratic Principles Online
- Christopher Mitchell: Treasury Department Rescue Plan Act Rules Improve Broadband Funding
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