Section 230
Section 230 Executive Order Questioned by Federal Communications Commissioner Geoffrey Starks and Legal Experts

June 17, 2020 — “Section 230 is on fire in D.C.,” said Eric Goldman, professor at the Santa Clara University School of Law, at a Wednesday webinar hosted by the Information Technology & Innovation Foundation.
Panelists on the webinar discussed President Donald Trump’s recent executive order regarding the controversial statute, as well as other recent attempts to curb its reach. On Wednesday, the Department of Justice issued new recommendations for reforming the statute, and Sens. Josh Hawley, R-Mo., and Marco Rubio, R-Fla., introduced a bill that would allow users to sue internet companies for uneven or “bad faith” enforcement of their terms of service.
Each proposal attempts to curtail the liability protections that Section 230 of the Communications Decency Act provides to online platform companies hosting third party content.
“The executive order was really the kind of stuff you would expect to hear at a President Trump for Reelection campaign rally, rather than what you’d expect to see in a legally binding document that has gone through full legal vetting by a well-functioning executive branch,” Goldman said.
While opponents of Section 230 claim that it allows social media companies to limit free speech, Federal Communications Commissioner Geoffrey Starks pointed out that the companies themselves are protected by the First Amendment.
“In focusing on Section 230, we shouldn’t lose sight of the fact that the Constitution — not just a statute — protects private actors’ right to label, moderate, and otherwise control speech on their platforms,” he said. “The First Amendment allows social media companies to censor content freely in ways the government never could, and it prohibits the government from retaliating against them for their speech.”
The executive order directs the National Telecommunications and Information Administration of the Commerce Department to send a petition asking the FCC to propose regulations regarding Section 230.
Starks urged the NTIA to send this request as quickly as possible, rather than waiting until the prescribed deadline at the end of July.
“If, as I suspect it will, the petition fails at the threshold legal question of authority, we should say so loud and clear, close the book on this unfortunate detour and get back to the important work of closing the digital divide,” he said.
Starks also emphasized the political timing of the order.
“Whatever you think of its merits, the executive order represents the President’s clear intention to influence how social media companies operate at a time when their decisions are heavily implicated in his own electoral future,” he said.
Other experts question the need for the executive order
Kate Klonick, assistant professor at the St. John’s University School of Law, agreed, saying that “this has turned into a way to go after platforms and big tech companies because they hold a lot of power and a lot of amplifying potential for politicians.”
Goldman argued that the debate over content moderation should be framed as editorial discretion rather than censorship. Companies clearly have the right to exercise their editorial discretion in a politically biased way, he said, even if such an outcome is undesirable.
There is no evidence currently supporting the existence of political bias on social media platforms, Goldman claimed, and by definition, every single content moderation decision creates a winner and a loser.
“Those losers, over time, feel like they can look around, find other people who have the same outcome and say, ‘how come they’re all picking on us?’” Goldman said. “The losers are always going to be unhappy with the outcome they got, and they’re always going to claim that that was a result of bias against them.”
Content guidelines on social media platforms have stayed largely the same for the past several years, Klonick added. Any perceived uptick in enforcement is likely explained by the growing amount of extremist speech online.
Starks expressed skepticism about whether the FCC should even be playing a role in the regulation, explaining that the agency has power to act either when expressly directed to do so by Congress or when Congress leaves an interpretive gap to be filled.
“Neither has happened here,” he said. “Section 230 provides a self-enforcing rule for courts to apply in private litigation and does not give the FCC an enforcement or administrative role.”
“That the president might find it more expedient to influence a five-member Commission than a 538-member Congress is not a sufficient reason, much less a good one, to circumvent the constitutional function of our democratically elected representatives,” he added.
Klonick noted the importance of a commissioner arguing that his own agency is not supposed to have a certain authority.
“The phrase ‘when you’re a hammer, everything’s a nail’ comes to mind, and if you’re actually going, ‘oh no, this isn’t a nail,’ and you’re hearing it from the hammer, I think that’s pretty significant,” she said.
Section 230
Supreme Court Sides With Google and Twitter, Leaving Section 230 Untouched
A wide range of tech industry associations and civil liberties advocates applauded the decision to leave Section 230 untouched.

WASHINGTON, May 18, 2023 — The Supreme Court on Thursday sided with Google and Twitter in a pair of high-profile cases involving intermediary liability for user-generated content, marking a significant victory for online platforms and other proponents of Section 230.
In Twitter v. Taamneh, the court ruled that Twitter could not be held liable for abetting terrorism by hosting terrorist content. The unanimous decision was written by Justice Clarence Thomas, who had previously signaled interest in curtailing liability protections for online platforms.
“Notably, the two justices who have been most critical of Section 230 and internet platforms said nothing of the sort here,” said Ari Cohn, free speech counsel at TechFreedom.
In a brief unsigned opinion remanding Gonzalez v. Google to the Ninth Circuit, the court declined to address Section 230, saying that the case “appears to state little, if any, plausible claim for relief.”
A wide range of tech industry associations and civil liberties advocates applauded the decision to leave Section 230 untouched.
“Free speech online lives to fight another day,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “Twitter and other apps are home to an immense amount of protected speech, and it would be devastating if those platforms resorted to censorship to avoid a deluge of lawsuits over their users’ posts.”
John Bergmayer, legal director at Public Knowledge, said that lawmakers should take note of the rulings as they continue to debate potential changes to Section 230.
“Over the past several years, we have seen repeated legislative proposals that would remove Section 230 protections for various platform activities, such as content moderation decisions,” Bergmayer said. “But those activities are fully protected by the First Amendment, and removing Section 230 would at most allow plaintiffs to waste time and money in court, before their inevitable loss.”
Instead of weakening liability protections, Bergmayer argued that Congress should focus on curtailing the power of large platforms by strengthening antitrust law and promoting competition.
“Many complaints about Section 230 and content moderation policies amount to concerns about competition and the outsize influence of major platforms,” he said.
The decision was also celebrated by Sen. Ron Wyden, D-Ore., one of the statute’s original co-authors.
“Despite being unfairly maligned by political and corporate interests that have turned it into a punching bag for everything wrong with the internet, the law Representative [Chris] Cox and I wrote remains vitally important to allowing users to speak online,” Wyden said in a statement. “While tech companies still need to do far better at policing heinous content on their sites, gutting Section 230 is not the solution.”
However, other lawmakers expressed disappointment with the court’s decision, with some — including Rep. Cathy McMorris Rodgers, R-Wash., chair of the House Energy and Commerce Committee — saying that it “underscores the urgency for Congress to enact needed reforms to Section 230.”
Broadband Roundup
White House Meets AI Leaders, FTC Claims Meta Violated Privacy Order, Graham Targets Section 230
The Biden administration announced $140 million in new funding for national AI research.

May 5, 2023 — Vice President Kamala Harris and other senior officials on Thursday met with the CEOs of Alphabet, Anthropic, Microsoft and OpenAI to discuss the risks associated with artificial intelligence technologies, following the administration’s announcement of $140 million in funding for national AI research.
President Joe Biden briefly stopped by the meeting, telling the tech leaders that “what you’re doing has enormous potential and enormous danger.”
Government officials emphasized the importance of responsible leadership and called on the CEOs to be more transparent about their AI systems with both policymakers and the general public.
“The private sector has an ethical, moral and legal responsibility to ensure the safety and security of their products,” Harris said in a statement after the meeting.
In addition to the new investment in AI research, the White House announced that the Office of Management and Budget would be releasing proposed policy guidance on government usage of AI systems for public comment.
The initiatives announced Thursday are “an important first step,” wrote Adam Conner, vice president of technology policy at the Center for American Progress. “But the White House can and should do more. It’s time for President Joe Biden to issue an executive order that requires federal agencies to implement the Blueprint for an AI Bill of Rights and take other key actions to address the challenges and opportunities of AI.”
FTC claims Facebook violated privacy order
The Federal Trade Commission on Wednesday proposed significant modifications to its 2020 privacy settlement with Facebook, accusing the company of violating children’s privacy protections and improperly sharing user data with third parties.
The suggested changes would include a blanket prohibition against monetizing the data of underage users and limits on the uses of facial recognition technology, among several other constraints.
“Facebook has repeatedly violated its privacy promises,” said Samuel Levine, director of the FTC’s Bureau of Consumer Protection. “The company’s recklessness has put young users at risk, and Facebook needs to answer for its failures.”
Although the agency voted unanimously to issue the order, Commissioner Alvaro Bedoya expressed concerns about whether the changes exceeded the FTC’s limited order modification authority. “I look forward to hearing additional information and arguments and will consider these issues with an open mind,” he said.
Meta responded to the FTC’s action with a lengthy statement calling it a “political stunt” and outlining the changes that have been implemented since the original order.
“Let’s be clear about what the FTC is trying to do: usurp the authority of Congress to set industry-wide standards and instead single out one American company while allowing Chinese companies, like TikTok, to operate without constraint on American soil,” wrote Andy Stone, Meta’s director of policy communications, in a statement posted to Twitter.
Meta now has thirty days to respond to the proposed changes. “We will vigorously fight this action and expect to prevail,” Stone said.
Sen. Graham threatens to repeal Section 230 if tech lobby kills EARN IT Act
The Senate Judiciary Committee on Thursday unanimously approved the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, a controversial bill that would create new carveouts to Section 230 in an attempt to combat online child sexual abuse material.
But Sen. Lindsey Graham, R-S.C., the bill’s cosponsor and ranking member of the committee, expressed doubt about the legislation’s future, claiming that “the political and economic power of social media companies is overwhelming.”
“I have little hope that common-sense proposals like this will ever become law because of the lobbying power these companies have at their disposal,” he said in a statement on Thursday. “My next approach is going to be to sunset Section 230 liability protection for social media companies.”
If Congress fails to pass legislation regulating social media companies, Graham continued, “it’s time to open up the American courtrooms as a way to protect consumers.”
However, large tech companies are not the only critics of the EARN IT Act. The American Civil Liberties Union on Thursday urged Congress to reject the proposed legislation, alongside two other bills related to digital privacy.
“These bills purport to hold powerful companies accountable for their failure to protect children and other vulnerable communities from dangers on their services when, in reality, increasing censorship and weakening encryption would not only be ineffective at solving these concerns, it would in fact exacerbate them,” said Cody Venzke, ACLU senior policy counsel.
Section 230
Narrowing Section 230 Could Destroy Smaller Platforms, Warns Nextdoor
Many small to mid-sized platforms operate on a business model that relies on content moderation.

WASHINGTON, April 4, 2023 — Narrowing Section 230 protections for online services could have significant economic repercussions, particularly for smaller platforms that rely on content curation as a business model, according to experts at a panel hosted by the Computer & Communications Industry Association Research Center on Tuesday.
“There’s really unintended consequences for the smaller players if you take a ‘one size fits all’ approach here,” said Laura Bisesto, global head of policy, privacy and regulatory compliance for Nextdoor.
Many small to mid-sized platforms operate on a business model that relies on content moderation, Bisesto explained. For example, Reddit hosts thousands of active forums that are each dedicated to a stated topic, and consumers join specific forums for the purpose of seeing content related to those topics.
Similarly, Bisesto claimed that Nextdoor’s proximity-based content curation is what makes the platform competitive.
“We want to make sure you’re seeing relevant, very hyper-local content that’s very timely as well,” she said. “It’s really important to us to be able to continue to use algorithms to provide useful content that’s relevant, and any narrowing of Section 230 could really impede that ability.”
Algorithmic organization is also crucial for large platforms that host a broad range of content, said Ginger Zhe Jin, a professor of economics at the University of Maryland. The sheer volume of content on platforms such as YouTube — which sees 500 hours of new video uploaded each minute — would make it “impossible for consumers to choose and consume without an algorithm to sort and list.”
Without Section 230, some companies’ platforms might choose to forgo the use of algorithms altogether, which Jin argued would “undermine the viability of the internet businesses themselves.”
The alternative would be for companies to broadly remove any content that could potentially generate controversy or be misinterpreted.
“Either way, we’re going to see maybe less content creation and less content consumption,” Jin said. “This would be a dire situation, in my opinion, and would reduce the economic benefits the internet has brought to many players.”
Who should be updating Section 230?
In February, the Section 230 debate finally reached the Supreme Court in a long-awaited case centered around intermediary liability. But some industry experts — and even multiple Supreme Court justices — have cast doubt on whether the court is the right venue for altering the foundational internet law.
Bisesto argued that the question should be left to Congress. “They drafted the law, and I think if it needs to be changed, they should be the ones to look at it,” she said.
However, she expressed skepticism about whether lawmakers would be able to reach a consensus, highlighting the “fundamental disagreement” between the general Republican aim of leaving more content up and Democratic aim of taking more content down.
If the Supreme Court refrains from major changes, “pressure will increase for Congress to do something as the 50 different states are passing different statutes on content moderation,” said Sarah Oh Lam, a senior fellow at the Technology Policy Institute.
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