Politicians & Section 230: A Love/Hate Relationship

Many moons ago, before making the transition to a more IP and privacy focused career, I was a staff attorney at the Media Law Resource Center. Our membership consisting of content providers and the law firms that represented them, we spent a lot of time tracking media law issues and matters of interest for our members. Section 230 was always a hot topic. I had all but forgotten about the protections afforded by Section 230 until it started flying out of the mouth of politicians in the past few months.

For those unfamiliar with Section 230 of the Communications Decency Act, I have highlighted a few points below for relevance.

· Section 230 does two main things. It states that websites aren’t liable for third-party content and that websites don’t need to filter objectionable content. There are statutory exceptions for IP, federal criminal prosecutions, ECPA, and FOSTA.

· Section 230 doesn’t distinguish between “platforms” and “publishers.” Both equally qualify for Section 230 protection for third-party content.

Section 230 is important because it essentially stands in as an extension of the First Amendment, ensuring free speech for internet companies and ensuring that they won’t be unnecessarily liable for third-party content. Without Section 230, it is hard to imagine the rise of social media or many or the review sites we often utilize today. How would Facebook, Reddit and Yelp have survived if they had needed to personally defend and be held liable for every random post on their site?

President Donald Trump recently signed Executive Order 1392 or “Preventing Online Censorship“ which directly targets Section 230. As Eric Goldman put it “the EO doesn’t seek to prevent online censorship, it seeks to impose it”. Joe Biden has also spoke at length about his dislike of the protections afforded by Section 230 and stated “Section 230 should be revoked, immediately.” However, somewhere along the line these two and their friends in Congress became confused as to the entire reasoning behind the protection.

The point of Section 230 isn’t to weaponize Internet giants like Facebook and Twitter, allowing them to post whatever their users provide without filter. The point is to pick up where the First Amendment left off, providing broader speech rights and insulating online organizations that fit the profile from lawsuits that should truly be aimed at someone else. Eric Goldman does a better job of explaining this than I ever could. You can view his thoughts here.

It is a given that not every site that gets Section 230 protection is warm and rosy. There are discussions about narrowing the immunity of Section 230 potentially carving out truly threatening and problematic language. There is no doubt that no law is perfect and often we need to revisit and revise as individual action and use/abuse evolves. The important thing, however, is that we don’t rush to repealing or revoking something that has done a lot of good. Going forward, it might make sense to allow those who truly understand Section 230 to craft and sponsor any changes in legislation lest we doom ourselves in the technology space.