Donald Trump has been an advocate for repealing Section 230
The legal firestorm that has dragged three of the world’s most influential chief executives before the US Congress this week began, as matters concerning the internet sometimes do, with pornography.
In 1996, as the world was still deciding how to regulate cyberspace, the United States passed the controversial Communications Decency Act (CDA) in an attempt to curb online obscenity.
While much of that law was later struck down by courts, one part remained: Section 230, a provision demanded by free speech advocates in Congress and since described by Jeff Kossef, a cybersecurity law professor, as "the 26 words that created the internet”.
Today, Google’s Sundar Pichai, Facebook’s Mark Zuckerberg and Twitter’s Jack Dorsey will be charged with defending s230 from a bipartisan assault, with potential consequences for freedom of expression and innovation across the world.
The law has been hammered into the political zeitgeist this year thanks to an executive order from President Donald Trump in May seeking to punish Twitter for imposing warning labels on his tweets. Since then, he has often tweeted the phrase “repeal Section 230”, and in a rare show of unison his nemesis Joe Biden has demanded the same.
Section 230 in federal law protects your right to free speech on the internet. It’s what allows you to criticize @realDonaldTrump or me or the Cleveland @Browns without fear that the post will be taken down.
For example: @POTUS is a jerk for suing to rip your healthcare away. https://t.co/xgx75WzyY0
— Ted Lieu (@tedlieu) October 6, 2020
Yet s230’s supporters in tech, activism, academia and politics argue that it is being unfairly blamed for problems it did not cause, and that removing it could undermine the basis of online speech.
“People are very angry at the big tech companies for very different reasons, and s230, because it is seen as helping to enable [their] business models, is being used as a proxy for attack,” says Kosseff.
“In fact, s230 might not really be related to the specific problem that people have with the tech companies. It’s just a very attractive target."
Section 230 was designed to resolve a legal dilemma over whether nascent internet companies should be treated as distributors of information, like phone companies, or as publishers, like newspapers. It stops digital companies that host user generated content (like review websites or classifieds) from an onslaught of lawsuits for incriminating content.
Today, however, tech giants stand accused by all sides of flouting that grand bargain by becoming unregulated publishers that claim to be mere conduits. Crackdowns on hate speech and fake news have begun to look rather editorial, as algorithms and human staff decide what billions of people see in their feeds.
For Trump and other Republicans, these actions are proof that tech companies are not neutral but systematically biased against conservative voices.
The Left is more concerned with a lack of moderation, with Biden claiming that without fear of lawsuits, social networks have been allowed to let harmful content fester.
The problem is that much of this has nothing to do with s230. Twitter’s decision to place fact checks on certain tweets constitutes an expression of Twitter’s own opinion, which it is entitled to as a private company under America’s famed First Amendment.
Full repeal without replacement could easily backfire by forcing social networks to become more censorious than ever, perhaps filtering users’ posts before publication in order to avoid legal action. Lawyers and researchers of many political stripes also argue that revocation would deal a devastating blow to smaller competitors, while remaining at worst a headache for the likes of Facebook, Twitter and Google.
“Section 230 is incredibly valuable to small platforms because it allows them to carry user generated content without the fear that if something goes wrong they’re going to be sued into oblivion,” says Jennifer Huddleston, director of technology and innovation policy at the centre-Right American Action Forum.
“Review websites are user-generated, messaging apps and even Zoom also rely on content created by people outside the company… what cost will that have on consumers if they are the ones absorbing that risk?”
Indeed, stringent new privacy regulations in Europe and California, intended to restrain giants such as Google, have often bolstered deep-pocketed giants while smaller companies struggled to follow them.
Other attempts to poke holes in s230 have had unintended effects. In 2018, years of attempts to hold the classified ads site Backpage.com responsible for sex trafficking enabled by its advertising services foundered existing laws, leading to the passage of two new acts, FOSTA and SESTA.
What is Section 230?
Though Backpage was forced to shut down, cases have since been brought against MailChimp, a business email provider, and Salesforce, which sells sales and accounting software, because their products were used by sex traffickers.
None of that has stopped s230 from becoming a highly politicised catch-all to discuss political bias at technology companies which have become more influential than traditional media without any of the regulation that comes with it.
And while nobody is more "stunned" than Kossef, who originally had trouble finding a publisher for his book, he is not convinced that the spotlight will do anything to change how the web works. “The problem is that you don’t have an agreement on the problem,” he says. “There are some that think the platforms are doing far too much moderation and others who think [they] are doing too little. Until you have consensus on what they want, I don’t know how you can have a policy solution.”
Matt Perault, director of the Centre on Science and Technology Policy at Duke University and a former director of public policy at Facebook, has proposed that the government modify criminal law rather than s230. It could prohibit voting misinformation, such as misleading voters about voting times and locations, and put more responsibility on individual users for their content.
"News Corp [the Rupert Murdoch owned publisher of The Sun and The Times], which has been arguing against s230, benefits from its protections when it runs its own comment section," he says. "And that’s true for large tech platforms, for large publishing companies and for small startups. "So the main thing that would change is that the user generated content model, which has been the basis of online expression, would be significantly changed and much more difficult for any type of website, whether large or small."
The bosses of tech companies themselves disagree on what Congress should do about Section 230, according to testimony published in advance of the hearing. Pichai will remind Senators that any change could widely impact the greater ecosystem, whereas Zuckerberg calls for reform. All argue that it may harm free speech.
Daphne Keller, a former associate general counsel at Google and now a leading academic expert on s230, says its adoption as a "campaign issue" by both Republicans and Democrats may partly be a "proxy war" for disputes between tech companies, content companies and telecom companies, all of which donate to political campaigns. As for today’s [Wednesday’s] testimony, she is blunt: "I doubt many lawmakers are there to be convinced of anything, and many are there to perform… the hearing will be a s—show."
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