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Section 230

Tread Carefully if Section 230 is to Be Changed, Experts Say at INCOMPAS Event



Photo of Julie Samuels from Engine

February 8, 2021—Amending too rashly or quickly the internet intermediary liability provision of the Telecommunications Act will harm smaller companies and new entrants but won’t have the intended impact on larger players, according to experts.

Former President Donald Trump has often complained about big technology companies alleged control over speech on the internet, especially in the wake of Twitter adding disclaimers on his misleading tweets and then banning him for allegedly inciting the Capital riot last month.

Trump and other conservatives have sought revocation of Section 230 of the Communications Decency Act that shields these companies from liability for content posted on their platforms.

On the 25th anniversary of the Telecommunications Act, experts wrangled with the question of whether Section 230 should be reformed and, if so, to what degree.

On Monday, the Internet and Competitive Networks Association, also known as INCOMPAS, hosted a panel of experts to further dissect some of the consequences of repealing or reforming Section 230, which has been discussed in past events.

Julie Samuels, founder and executive director of Tech: NYC, said at the INCOMPAS event that  Section 230 should not be altered lightly, and that changes to its current state could have significant consequences for small platforms.

“If we do see drastic reform or even, frankly, moderate reform to Section 230…larger companies will be able to comply,” Samuels continued. “They have the resources to comply. Who doesn’t have the resources to comply? Smaller startups, nonprofit organizations, [and] marginalized voices.”

Proceed with caution on Section 230 changes

This is not to say that Samuels does not believe that no changes should be made to Section 230; Samuels made it clear that her chief concern is that Congress or the National Telecommunications and Information Administration, an agency of the commerce department, would “come in with a sledgehammer, when what they really need is a scalpel.”

She reminded the audience that Section 230 was designed to address concerns associated with large corporations, yet it will ultimately be the smaller organizations that end up paying the price. More than that, Samuels emphasized that amending Section 230 would impact companies that don’t even exist yet. “What we’re in theory doing [by amending Section 230] is creating potential barriers to entry that are incredibly difficult to surmount.”

Screenshot of from the INCOMPAS Policy Summit

Samuels specifically pointed to Sen. Mark Warner, a Democrat from Virginia, who is proposing legislation that allegedly could hurt small companies. Senator Warner’s bill would effectively change Section 230 into an affirmative defense, meaning that the companies in question would need to provide evidence that they did not violate the law, she said. While large companies could afford to litigate issues like this in court, small companies would have significantly more trouble doing so.

Pinterest’s Head of U.S. Public Policy and Social Impact, Braden Cox, pointed out that there is a common misconception that Section 230 could be amended so that it could somehow only effect large companies. The reality is, he said,it effects all online media.

Other say Section 230 is good as it is

Attorney and policy advisor for INCOMPAS Lindsay Stern, however, said one of the primary goals of Section 230 is to promote competition in the online landscape, and it has succeeded in the regard.

“The ability to host and moderate [third party] content in good faith is good for competition because it allows websites to differentiate themselves by what they allow.” Stern emphasized that altering Section 230 could remove this benefit.

Reporter Ben Kahn is a graduate of University of Baltimore and the National Journalism Center. His work has appeared in Washington Jewish Week and The Center Square, among other publications. He he covered almost every beat at Broadband Breakfast.

Section 230

Section 230 Shuts Down Conversation on First Amendment, Panel Hears

The law prevents discussion on how the first amendment should be applied in a new age of technology, says expert.



Photo of Ron Yokubaitis of, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)

WASHINGTON, March 9, 2023 – Section 230 as it is written shuts down the conversation about the first amendment, claimed experts in a debate at Broadband Breakfast’s Big Tech & Speech Summit Thursday.  

Matthew Bergman, founder of the Social Media Victims Law Center, suggested that section 230 avoids discussion on the appropriate weighing of costs and benefits that exist in allowing big tech companies litigation immunity in moderation decisions on their platforms. 

We need to talk about what level of the first amendment is necessary in a new world of technology, said Bergman. This discussion happens primarily in an open litigation process, he said, which is not now available for those that are caused harm by these products. 

Photo of Ron Yokubaitis of, Ashley Johnson of Information Technology and Innovation Foundation, Emma Llanso of Center for Democracy and Technology, Matthew Bergman of Social Media Victims Law Center, and Chris Marchese of Netchoice (left to right)

All companies must have reasonable care, Bergman argued. Opening litigation doesn’t mean that all claims are necessarily viable, only that the process should work itself out in the courts of law, he said. 

Eliminating section 230 could lead to online services being “over correct” in moderating speech which could lead to suffocating social reform movements organized on those platforms, argued Ashley Johnson of research institution, Information Technology and Innovation Foundation. 

Furthermore, the burden of litigation would fall disproportionally on the companies that have fewer resources to defend themselves, she continued. 

Bergman responded, “if a social media platform is facing a lot of lawsuits because there are a lot of kids who have been hurt through the negligent design of that platform, why is that a bad thing?” People who are injured have the right by law to seek redress against the entity that caused that injury, Bergman said. 

Emma Llanso of the Center for Democracy and Technology suggested that platforms would change the way they fundamentally operate to avoid threat of litigation if section 230 were reformed or abolished, which could threaten freedom of speech for its users. 

It is necessary for the protection of the first amendment that the internet consists of many platforms with different content moderation policies to ensure that all people have a voice, she said. 

To this, Bergman argued that there is a distinction between algorithms that suggest content that users do not want to see – even that content that exists unbeknownst to the seeker of that information – and ensuring speech is not censored.  

It is a question concerning the faulty design of a product and protecting speech, and courts are where this balancing act should take place, said Bergman. 

This comes days after law professionals urged Congress to amend the statue to specify that it applies only to free speech, rather than the negligible design of product features that promote harmful speech. The discussion followed a Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube.   

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Section 230

Congress Should Amend Section 230, Senate Subcommittee Hears

Experts urged Congress to amend tech protection law to limit protection for the promotion of harmful information.



Photo of Hany Farid, professor at University of California, Berkley

WASHINGTON, March 8, 2023 – Law professionals at a Senate Subcommittee on Privacy, Technology and the Law hearing on Wednesday urged Congress to amend Section 230 to specify that it applies only to free speech, rather than the promotion of misinformation.

Section 230 protects platforms from being treated as a publisher or speaker of information originating from a third party, thus shielding it from liability for the posts of the latter. Mary Anne Franks, professor of law at the University of Miami School of Law, argued that there is a difference between protecting free speech and protecting information and the harmful dissemination of that information.

Hany Farid, professor at University of California, Berkley, argued that there should be a distinction between a negligently designed product feature and a core component to the platform’s business. For example, YouTube’s video recommendations is a product feature rather than an essential function as it is designed solely to maximize advertising revenue by keeping users on the platform, he said.

YouTube claims that the algorithm to recommend videos is unable to distinguish between two different videos. This, argued Farid, should be considered a negligently designed feature as YouTube knew or should have reasonably known that the feature could lead to harm.

Section 230, said Farid, was written to immunize tech companies from defamation litigation, not to immunize tech companies from any wrongdoing, including negligible design of its features.

“At a minimum,” said Franks, returning the statue to its original intention “would require amending the statute to make clear that the law’s protections only apply to speech and to make clear that platforms that knowingly promote harmful content are ineligible for immunity.”

In an State of the Net conference earlier this month, Frank emphasized the “good Samaritan” aspect of the law, claiming that it is supposed to “provide incentives at platforms to actually do the right thing.” Instead, the law does not incentivize platforms to moderate its content, she argued.

Jennifer Bennett of national litigation boutique Gupta Wessler suggested that Congress uphold what is known as the Henderson framework, which would hold a company liable if it materially contributes to what makes content unlawful, including the recommendation and dissemination of the content.

Unfortunately, lamented Eric Schnapper, professor of law at University of Washington School of Law, Section 230 has barred the right of Americans to get redress if they’ve been harmed by big tech. “Absolute immunity breeds absolute irresponsibility,” he said.

Senator Richard Blumenthal, R-Connecticut, warned tech companies that “reform is coming” at the onset of the hearing.

This comes weeks after the Supreme Court decision to provide immunity to Google for recommending terrorist videos on its video platform YouTube. The case saw industry dissention on whether section 230 protects algorithmic recommendations. Justice Brett Kavanaugh claimed that YouTube forfeited its protection by using recommendation algorithms but was overturned in the court ruling.

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Content Moderation, Section 230 and the Future of Online Speech

Our comprehensive report examines the extremely timely issue of content moderation and Section 230 from multiple angles.



In the 27 years since the so-called “26 words that created the internet” became law, rapid technological developments and sharp partisan divides have fueled increasingly complex content moderation dilemmas.

Earlier this year, the Supreme Court tackled Section 230 for the first time through a pair of cases regarding platform liability for hosting and promoting terrorist content. In addition to the court’s ongoing deliberations, Section 230—which protects online intermediaries from liability for third-party content—has recently come under attack from Congress, the White House and multiple state legislatures.

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