• Allon Advocacy

Much Ado About Section 230

Both Republicans and Democrats have been critical lately of Section 230 of the Communications Decency Act. But repealing it may not result in the outcome either side wants.

Earlier this week, YouTube announced that it will prevent video uploads to President Donald Trump’s account for at least one week. In so doing, YouTube joined other social media companies, including Facebook and Twitter, in restricting the President’s access to its platform, citing as its rationale concerns about new sparks of violence in the run-up to the presidential inauguration.

The social media industry’s sudden moves to block the President have reignited discussions on their platforms – and in the halls of Congress – about Section 230 of the Communications Decency Act (CDA), which Congress passed and President Bill Clinton signed in 1996.

You may remember that when President Trump vetoed the National Defense Authorization Act late last year, he demanded that Congress send him back a version of the bill that repealed Section 230. (The House and Senate overrode his veto instead.) But although the current president has been one of the most vocal critics of Section 230, he’s hardly alone. In fact, the technology news website The Verge recently predicted that, while “Section 230 reform may take a different direction after [President-elect Joe] Biden’s inauguration … it’s likely to remain on the table.” Both Republicans and Democrats could push for changes to the law in the 117th Congress.

Before discussing what to expect in the coming months, a refresher: what is Section 230? Is it, as the Electronic Frontier Foundation has claimed, “the most important law protecting internet speech”? And what is the relationship between Section 230 and the U.S. Constitution’s First Amendment?

Let’s take the second question first because The Verge has explained the relationship between Section 230 and the First Amendment well. The First Amendment, as Americans are well aware, “prohibits the government from restricting most forms of speech” by individuals. Less understood is that the First Amendment also protects companies from government encroachment. According to The Verge, for example, laws that force technology companies to moderate content “based on the political viewpoint” also “would likely” violate the First Amendment. And because private companies have their own right to free speech, they also can create rules about what content lives on their site. It is for this reason that Facebook and Twitter can ban hate speech. As The Verge concluded, “Moderation rules are protected by the First Amendment as well.”

That’s the First Amendment. Now, what is Section 230?

Basically, this provision says technology companies – including Facebook, Twitter, and YouTube, which were not even a figment of their founders’ imaginations in 1996 when the CDA was passed – cannot be held liable for content hosted on their platforms. As The New York Times has explained, Section 230 “permits internet companies to moderate their sites without being on the hook legally for everything they host.” Additionally, as the American Action Forum has noted, under Section 230, companies also are “allowed to determine how they enforce” content rules and “what content violates them, and what if any users to remove.”

The provision isn’t a panacea. It does not, for example, provide protection from legal responsibility for criminal acts like posting child pornography or violating intellectual property.

Section 230 was borne out of a 1990s lawsuit against the online service provider Prodigy Communications Corporation. (Younger readers might have to Google Prodigy.) As The Times explained, using Prodigy, an anonymous user had accused a prominent investment firm of engaging in criminal acts. A lawsuit ensued and the New York Supreme Court eventually ruled that Prodigy was “a publisher” and therefore liable for the content on its site.

Lawmakers took notice of the case. As The Times explained, the ruling “caught the attention” of Sen. Ron Wyden (D-Ore.), who will ascend to the chairmanship of the Senate Finance Committee later this year, and former Rep. Chris Cox (R-Calif.). The two wrote the text of Section 230, which was added to the CDA without much debate or controversy.

Section 230 has been the subject of several court cases over the last 25 years and, as a result, has been scaled back somewhat, but courts generally have upheld tech companies’ protections from liability.

Section 230 has gained more attention as social media companies have expanded their efforts to moderate content. In addition to President Trump’s attempt to convince Congress to repeal the statute when it considered the National Defense Authorization Act last December, the president also issued an executive order in May 2020 that directed federal agencies to use their regulatory authority to weaken Section 230.

Support for altering Section 230 extends far beyond the White House, however. And proponents and opponents cannot easily be put into traditional ideological camps. As The New York Times noted, for example, Sen. Ted. Cruz (R-Texas) has described Section 230 as “a subsidy, a perk” for technology companies while Speaker Nancy Pelosi (D-Calif.) – who, of course, hails from San Francisco, where many of the social media platforms are based – has called it a “gift … that could be removed.”

But elected officials on both sides of the aisle may want to consider whether repealing the statute would accomplish what they hope for. Jennifer Huddleston, director of technology and innovation policy at the right-leaning American Action Forum, has warned that, without Section 230, social media “platforms would face a moderator’s dilemma of either engaging in heavy-handed moderation to prevent anything potentially offensive or harmful (that could trigger a suit against the platform for hosting it) or not engaging in moderation at all.”

The progressive American Civil Liberties Union also has defended Section 230. In an October press release, ACLU Senior Legislative Counsel Kate Ruane said, “Section 230 is critical to protecting free speech online … The First Amendment protects us from government control over what we can tweet, post, and say online – this includes respecting the editorial decisions of the platforms themselves.”

So, what is likely to happen to Section 230 in the coming months?

While outright repeal might be off the table after January 20, members of both parties are likely to push reforms.

Sen. Josh Hawley (R-Mo.), for example, likely will reintroduce legislation that will prevent companies from removing content that the companies deem offensive and that would require companies’ content moderation efforts to be reviewed and certified “politically neutral” by a bipartisan panel.

Democrats in Congress could support efforts like the Platform Accountability and Consumer Transparency (PACT) Act, which would require websites to report how they moderate content. The PACT Act also would require companies to implement a user complaint system with an appeals process and to remove potentially illegal content within 24 hours.

Derek Bambauer, a professor of law at the University of Arizona, noted there also are “several bipartisan proposals” regarding Section 230. The EARN IT Act, for example, “would condition immunity on firms adopting congressionally mandated methods for eliminating child sex abuse material, which would include rolling back encryption protections for consumers.”

Make no mistake: these efforts will move forward in the new Congress. Indeed, Sen. Richard Blumenthal (D-Conn.), who has sponsored Section 230 legislation, has told Recode, the events of the last week will “renew and focus the need for Congress to reform Big Tech’s privileges and obligations. This begins with reforming Section 230.”

Rep. Anna Eshoo (D-Calif.) also has pledged to reintroduce her bill to repeal Section 230 immunity protections very soon. She told Recode, “Twitter, Facebook, YouTube, and many smaller platforms gave violent rioters a platform to organize and share dangerous misinformation.” Rep. Eshoo said the issue “must be addressed.”

According to The Verge, President-elect Biden “is not a fan” of Section 230. One year ago, in the midst of the Democratic presidential primaries, Biden actually proposed revoking Section 230 completely. While the president-elect “has not advanced a specific Section 230 agenda,” since the election, last month, according to The Verge a Biden advisor suggested “throwing out” Section 230 and developing new legislation.

Technology companies – and, indeed all Americans – must watch how this debate unfolds over the coming months since will have a profound impact on how firms operate moving forward, and what users can all say and do online. It is very possible that, as scholars from the right-leaning American Action Forum have warned, “Revoking Section 230 protections … would ironically result in much more moderation and content removal of opinions across the political spectrum by platforms.”

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