Section 230 of the Communications Decency Act (CDA) of 1996
(a common name for Title V of the Telecommunications Act of 1996) is a piece of
Internet legislation in the United States, codified at 47 U.S.C. Section
230. At its core, Section 230 provides immunity from liability for providers
and users of an “interactive computer service” who publish information provided
by third-party users:
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.
The statute in Section 230 further provides “Good Samaritan”
protection from civil liability for operators of interactive computer services
in the removal or moderation of third-party material they deem obscene or
offensive, even of constitutionally protected speech, as long as it is done in
good faith.
Section 230 was developed in response to a pair of lawsuits
against Internet service providers in the early 1990s that had different
interpretations of whether the service providers should be treated as
publishers or distributors of content created by its users. It was also pushed
by the tech industry, and other experts, that language in the proposed CDA made
providers responsible for indecent content posted by users that could extend to
other types of questionable free speech.
After passage of the Telecommunications Act, the CDA was
challenged in courts and ruled by the Supreme Court in Reno v. American Civil
Liberties Union (1997) to be partially unconstitutional, leaving the Section
230 provisions in place. Since then, several legal challenges have validated
the constitutionality of Section 230.
Section 230 protections are not limitless, requiring providers
to still remove criminal material such as copyright infringement; more recently,
Section 230 was amended by the Stop Enabling Sex Traffickers Act (FOSTA-SESTA)
in 2018 to require the removal of material violating federal and state sex
trafficking laws. Protections from Section 230 has come under more recent
scrutiny on issues related to hate speech and ideological biases in relation to
the power technology companies can hold on political discussions.
Passed at a time where Internet use was just starting to
expand in both breadth of services and range of consumers in the United States,
Section 230 has frequently been referred as a key law that has allowed the
Internet to flourish, often referred to as “The Twenty-Six Words That Created
the Internet”.
President Trump has a new rallying cry in his escalating
crusade against Twitter. As he put it in a tweet Friday: “REVOKE 230!”
It's a reference to Section 230 of the Communications
Decency Act, a law passed by Congress in 1996. It says online platforms are not
legally responsible for what users post. Many say this protection enabled the
creation of the modern Internet. But critics — on both the left and right — say
it gives tech companies too much power at a time when they are essential to
many peoples’ lives.
Trump seized on the once-obscure legal provision after
wrangling with Twitter this week. The social media platform put fact-checking
labels on some of his tweets that claimed, without evidence, that mail-in
ballots were fraudulent. Trump then signed an executive order seeking to peel
away the sweeping legal immunity social media companies and other online sites
have long used as a shield against an avalanche of lawsuits.
The movement to revoke those safeguards is increasingly
becoming a bipartisan consensus, with presumptive Democratic presidential
nominee Joe Biden even saying Section 230 should be scrapped.
But experts caution that eliminating the legal protections
may have unintended consequences for Internet users that extend far beyond Facebook
and Twitter.
Left and right criticize Section 230 — for different reasons
Some Republicans, including Trump, accuse social media sites
of muzzling conservative voices. They say undoing Section 230 would let people
who claim they have been slighted sue the companies.
Sen. Josh Hawley, R-Mo., introduced a bill last year aimed
at ending the legal protections for tech companies unless they agreed to an
independent audit to ensure they were moderating content without political
bias. Following Twitter’s actions this week, Hawley promised to introduce new
legislation to end the legal immunity for tech companies.
“It's pretty simple: if Twitter and Google and the rest are
going to editorialize and censor and act like traditional publishers, they
should be treated like traditional publishers and stop receiving the special
carve out from the federal government in Section 230,” Hawley wrote on Twitter.
Democratic skeptics of the law, including House Speaker
Nancy Pelosi, have other complaints. They say Section 230 has created a fertile
environment for the rampant spread of online misinformation, harassment and
abuse. They argue, if Section 230 is jettisoned, tech platforms like Google, Facebook
and Twitter would have to do more to curb problematic content.
“Section 230 is in extremely precarious straits right now,”
said Eric Goldman, a professor at Santa Clara University Law School and
co-director of the High Tech Law Institute. “But both parties don't agree on
why it should be repealed, which may become tricky for both parties to find
consensus. If there is a proposal for a flat repeal, though, maybe both parties
will just agree.”
Goldman and other experts interviewed for this story say the
most likely outcome of a repeal of Section 230 is one that neither the left nor
the right want to see: more censorship by major tech companies and potentially
paralyzing other websites.
“We don't think about things like Wikipedia, the Internet
Archive and all these other public goods that exist and have a public-interest
component that would not exist in a world without 230,” said Aaron Mackey,
staff attorney at the Electronic Frontier Foundation, a digital civil liberties
nonprofit.
Without Section 230, experts argue, sites would have less
tolerance for people posting their opinions on YouTube, Reddit, Yelp, Amazon
and many other corners of the Internet.
Law created to eliminate ‘the moderator's dilemma’
Back in the 1990s, when now-quaint-sounding companies like
CompuServe, Prodigy and GeoCities were household names, the Communications
Decency Act was passed to address what Mackey calls “the moderator's dilemma.”
At the time, if online service providers took a hands-off
approach to what users posted — no matter how offensive or potentially illegal
— they were in a better position legally than if they chose to remove content
that was abusive or harmful, because doing so would make the companies look
like publishers and open to the door to a wave of defamation lawsuits.
Critics said online platforms had an incentive to ignore any
obscene or illegal content posted to their pages.
“Section 230 was designed to remove that dilemma, so a
platform can choose to do nothing or actively engage and set their own rules,”
Mackey said.
The law enshrined websites in a special legal category by
considering them distributors, rather than publishers. That gave them immunity
from lawsuits over online content, while letting them establish terms of
services for what is permissible or not.
There are some exceptions, however. Websites can still be
held responsible for child pornography and the violation of federal criminal
laws. In 2018, another exception was added to the law to hold websites like
Backpage.com responsible for promoting sex trafficking and prostitution.
More responsibility online, or greater censorship?
Since President Bill Clinton signed the original law in
1996, countless people have gone to court over inflammatory comments or videos
found on Facebook, Twitter, Google and other sites. But courts overwhelmingly
have sided with the Internet companies.
“If those lawsuits had a chance to succeed, we'd see
thousands times those lawsuits,” Goldman said. “Every time someone was
aggrieved with Internet services, they potentially would have a claim and take
it to court. Section 230 had kept that tsunami of complaints from hitting the
courts.”
The tech industry, unsurprisingly, is fighting hard to
preserve Section 230, said Jeff Kosseff, the author of a book about Section
230, ‘The Twenty-Six Words That Created the Internet.’
“The major platforms came into existence because of Section 230,”
Kosseff said. “Without Section 230, their operations would have to be
substantially changed.”
In particular, Facebook, Twitter and Google would likely
become aggressive about removing content and may side more often with
complaining users, Kosseff said.
Mackey with the Electronic Frontier Foundation agrees.
“It could create a prescreening of every piece of material
every person posts and lead to an exceptional amount of moderation and
prevention,” Mackey said. “What every platform would be concerned about is: Do
I risk anything to have this content posted to my site?”
Another possible ripple effect of repealing, Kosseff said,
is making it more difficult for whatever company is hoping to emerge as the
next big social media company.
“It will be harder for them because they will face more
liability at the outset,” Kosseff said.
Goldman with Santa Clara University Law School said
rescinding Section 230 could reduce the number of online platforms that welcome
open dialogue.
Section 230 is “a statement by Congress that we can do a
better job if we add in some additional protections for free speech.” Goldman
said. “Without it, a lot of things online we take for granted today will not
work the way they currently work, and some things will no longer be available
at all.”
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