September 16, 2019

Is It Time to Update the Internet’s “Legal Cornerstone”?


KEY TAKEAWAYS

  • The law provides broad immunity for online service providers, such as social media companies, for content their users post online.
  • Congress has also protected the companies’ voluntary, good faith actions to limit material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
  • Recently, some people have proposed altering the broad immunity that the law grants.

The internet has democratized the spread of knowledge and allowed millions of people to participate in public discourse and start businesses. One of the building blocks that allowed the internet to flourish free from fear of government intervention or ruinous civil litigation was Section 230 of the Communications Decency Act.

This provision, enacted by Congress in 1996, provides broad immunity for online service providers for content created by their users that might otherwise expose the business to liability for libel, defamation, infliction of emotional distress, and other claims. It also provides immunity for voluntary, good faith actions the companies take to restrict access to material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” A coalition of advocacy groups and legal scholars has called this part of the law “the legal cornerstone of the internet economy.” However, some contend the law is in need of revision, and there have been proposals to rein in or alter the broad immunity that Section 230 grants.

Historical context

When Congress passed Section 230, policymakers and industry were still discovering what the internet was and what it could be. In a time before smartphones, apps, and ubiquitous high-speed wireless internet, there was bipartisan agreement that government should tread carefully and not regulate the internet into oblivion. As a result, the Clinton administration adopted a “hands-off” policy, and the Republican Congress passed laws grounded in that principle. In addition to Section 230, the 1998 Internet Tax Freedom Act prohibited states and cities from taxing internet access.

Congress was spurred to action in part by court cases in the 1990s that found service providers liable for content hosted on their networks but created by users. In the most prominent case, Prodigy, an early service provider, was held liable for statements posted on one of its online bulletin boards by an unidentified user who claimed an investment banking firm had committed criminal acts. In 1995, a New York court found Prodigy liable for publishing the defamatory comments.

In response, Congress enacted what became Section 230. The underlying concept is that responsibility for speech lies with the speaker, not the host. Congressman Chris Cox, who co-authored Section 230, explained on the House floor, “it will establish as the policy of the United States that we do not wish to have content regulation by the federal government of what is on the internet.”

Is It Time to Update the Internet’s “Legal Cornerstone”?

impact

While the current proposals to change Section 230 are largely focused on social media companies such as Facebook and Twitter, the law’s reach is much broader. Review sites like Yelp, sharing and gig economy apps like Airbnb and Angie’s List, online dating sites, blogs, niche message boards, Craigslist, YouTube, Pinterest, Wikipedia, the comment sections on news sites, and many others benefit from – and in many cases may never have existed without – Section 230.

A tech industry organization has asserted, “weakening Section 230 or creating ambiguity around its protections will make it more difficult for startups to rely on it early in a lawsuit, before litigation costs escalate to the point where settling is less expensive than actually winning.” For large companies, this may be part of the price of doing business. For small startups, the high legal costs could impact their future.

At the same time, Section 230 also has been used as a legal defense for what many consider wrongful or illegal acts online, including defamation, revenge porn, fraud, anti-Semitism, and child pornography.

the courts

Courts have generally interpreted the immunity provision in Section 230 broadly. Suits for defamation, negligence, libel, and other tort claims have all been found by courts to be barred by Section 230.

However, there are some exceptions. These include federal criminal statutes, laws pertaining to intellectual property, state laws consistent with Section 230, the Electronic Communications Privacy Act or similar state laws, and certain sex trafficking offenses. This last exception was added in 2018 in the Allow States and Victims to Fight Online Sex Trafficking Act.

criticism from both left and right

In the past few months, Section 230 has been criticized by both Democrats and Republicans. The criticism from the right has focused on the perception that large social media companies have a political bias against conservatives and have used their positions to censor conservatives. Some Republicans argue tech companies have violated at least the spirit of Section 230, which says that the internet should be “a forum for a true diversity of political discourse.”

Senator Ted Cruz stated in an April Judiciary Committee hearing: “not only does big tech have the power to silence voices with which they disagree, but big tech likewise has the power to collate a person’s feed so that they only receive the news that comports with their own political agenda.”

Criticisms from the left have focused on hate speech online and disinformation campaigns such as those used by Russia in its efforts to meddle in the 2016 election. They contend the big tech companies have a responsibility to do more to stop the spread of such things on their platforms and point to the provision of Section 230 that immunizes good faith efforts to remove objectionable content.

House Speaker Nancy Pelosi recently warned that Section 230 is “a gift to [big tech companies] and I don’t think that they are treating it with the respect that they should, and so I think that that could be a question mark and in jeopardy. … I do think that for the privilege of 230, there has to be a bigger sense of responsibility on it. And it is not out of the question that that could be removed.”

Recent proposals

A number of lawmakers and observers have proposed measures that would alter, qualify, condition, or revoke Section 230’s broad protections for online service providers.

Senator Josh Hawley introduced S. 1914, the Ending Support for Internet Censorship Act. The bill would require platforms to receive a certification of political neutrality from the Federal Trade Commission in order to qualify for the protections of Section 230. Companies would have to apply to the FTC for certification every two years, and recertification would require the votes of four of the five FTC commissioners. Companies would have to prove “by clear and convincing evidence” that their algorithms and platforms are neutral in order to receive the certification.

Senator Hawley says the bill “simply states that if the tech giants want to keep their government-granted immunity, they must bring transparency and accountability to their editorial processes and prove that they don’t discriminate.” The bill has been criticized by the Consumer Technology Association.

Democratic Congressman Ed Case introduced legislation that would amend Section 230 to make clear the statute does not shield short-term vacation rental platforms like Airbnb when they facilitate rental bookings that are barred by local rules.

Case wrote in a “dear colleague” letter: “this is a narrow, targeted change to the statute to ensure short-term rental companies and internet platforms comply with state and local planning, zoning, rental, labor and tax laws and end their abusive stretching of CDA 230’s original intent.” The Travel Technology Association, which represents companies like Airbnb and VRBO, criticized the bill and contends “changing Section 230 is simply unnecessary and problematic for our country.”

Issue Tag: Technology