Revisiting Section 230

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Big tech has gotten so big it’s drawing the ire of governments across the globe.

Here in the United States the Department of Justice is looking into revising Section 230 of the 1996 Communications Decency Act so that companies are not immune to what their users do on their platforms.

Now we need to keep in mind that if it wasn’t for Section 230, the Internet as we know it wouldn’t be anything like it is now. It enables companies to build out innovative platforms without fear of being sued out of existence.

A Bit Of A History Lesson

According to Wikipedia:

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 services 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 making 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 remove criminal material such as copyright infringement; more recently, Section 230 was amended by the Stop Enabling Sex Traffickers Act in 2018 to require the removal of material violating federal and state sex trafficking laws.

Ina Fried in Axios writes: 

The big picture: Republicans and Democrats in Congress frustrated with how tech companies handle content moderation have been debating changes to 230 to address a range of issues, including child exploitation.

Fried continues:

Senate Judiciary Chairman Lindsey Graham is working on draft legislation that would require tech companies to “earn” 230 protections by following best practices for fighting child exploitation, with the Justice Department in a key role to determine those guidelines.

According to Wikipedia the law and in particular Section 230 came about in 1996 with the rapidly expanding growth of the internet.

In the early 1990s, the Internet became more widely adopted and created means for users to engage in forums and other user-generated content. While this helped to expand the use of the Internet, it also resulted in a number of legal cases putting service providers at fault for the content generated by its users. This concern was raised by legal challenges against CompuServe and Prodigy, early service providers at this time.[2] CompuServe stated they would not attempt to regulate what users posted on their services, while Prodigy had employed a team of moderators to validate content. Both faced legal challenges related to content posted by their users. In Cubby, Inc. v. CompuServe Inc., CompuServe was found not be at fault as, by its stance as allowing all content to go unmoderated, it was a distributor and thus not liable for libelous content posted by users. However, Stratton Oakmont, Inc. v. Prodigy Services Co. found that as Prodigy had taken an editorial role with regard to customer content, it was a publisher and legally responsible for libel committed by customers.[3][a]

By having platforms moderate the content on their site, which is next to impossible when some of these services have more than a billion users, the DOJ and the Senate are creating a quagmire which will open platforms up to more liability and quash innovation.

Workshopping The Idea.

Last Wednesday the DOJ convened a workshop with experts called “Section 230 — Nurturing Innovation or Fostering Unaccountability?”

The event was public in the morning and discussed whether Section 230 “encouraged or discouraged” companies like Facebook, Twitter, YouTube and Google to fight online crimes like child exploitation.

Covering the public morning session Axios reporter Issie Lapowsky writes:

Mary Anne Franks, a professor at the University of Miami School of Law… argued that Section 230 has given cover to platforms like Facebook when they allow people to broadcast mass shootings and rapes on Facebook Live.

“This is the world Section 230 built,” Franks said.

But the panels also included fierce defenders of the law, including Kate Klonick, an assistant professor at St. John’s University, who fired back at Franks’ comments in one particularly contentious exchange. “Mark Zuckerberg didn’t murder a person in Cleveland. He didn’t commit these rapes. What he did was he made them transparent to everyone,” Klonick said. “We can see how terrible we all are. And now you want the tech companies to clean it up for you.”

According to Fried, citing a person familiar with the event, the afternoon event, which was private, attendees discussed how content moderation, free speech and online conduct is affected.

What Are The True Motives?

On the surface having companies earn their protections under Section 230, seems like a great idea. But with the climate in which we find ourselves, are their more nefarious motives by the DOJ at play here.

Lapowsky quotes Attorney General William Barr saying:

Giving broad immunity to platforms that purposefully blind themselves and law enforcement to illegal conduct on their services does not create incentives to make the online world safer for children…. In fact, it may do just the opposite.

But Barr has also recently expressed the need to have companies give law enforcement “backdoor” access to encrypted platforms like Facebook’s WhatsApp.

Barr claims it’s so that law enforcement can better investigate child exploitation and terrorism. But critics say he is using the Section 230 debate as a pressure tactic to get unfettered access to encryption channels.

Original Framer Of Section 230 Resists

Senator Ron Wyden (D-Ore), one of the two senators who developed Section 230 in 1996, is against revision and stated at such in an op-ed in the Washington Post:

Under the guise of getting rid of lies and protecting children, they’re working with the Trump administration and top Republicans to undermine Americans’ rights and give the government unprecedented control over online speech.

My Takeaway

In my opinion, the DOJ and those in the Senate that are pro-revision, are hoping that people won’t read between the lines and see what they are really up to.

Revising Section 230, though on the surface looks like a noble cause, will hinder further innovation online, the same innovation which brought us the internet we enjoy today.

It’s a balancing act between free speech and protecting children and stopping terrorism. There is no simple answer. Both ways have unintended consequences.

It will be interesting to watch it play out.

What do you think? Post your thoughts in the comments below.