President Donald Trump signed an executive order curtailing Section 230 of the federal Communications Decency Act on May 28, which directly challenged a law that protects tech giants like Twitter from being held liable for the content their users post and how they moderate it.
The law, passed in 1996, was designed to prevent internet companies from being treated as publishers and was done in part to allow the internet to flourish.
It shields companies that can host trillions of messages, like Facebook and Twitter, from being sued by anyone who is wronged by something someone else has posted.
Section 230 protections also allow social media platforms to moderate their content by removing posts that violate the services’ own standards, so long as they are acting in “good faith.”
More than two decades later, critics of the law say it has been interpreted in the courts well beyond its original intent and has handed private tech companies the keys to the modern day version of the public square. Politicians on both sides of the aisle agree Big Tech has immense power that needs to be reigned in and regulated while some want to repeal Section 230 altogether.
On Oct. 28, Mark Zuckerberg, Jack Dorsey and Sundar Pichai, the bosses behind Facebook, Twitter and Google, testify before the Senate Commerce Committee following a unanimous vote on Oct. 1 to subpoena them. The men will be grilled on the powers afforded to their companies through Section 230, which will be the primary focus of the hearing.
Separately, Zuckerberg and Dorsey have been subpoenaed to appear before the Senate Judiciary Committee on Nov. 17 to answer questions about why the New York Post’s reporting on Hunter Biden’s foreign business dealings were censored or suppressed on their websites. The committee voted to subpoena the tech bosses on Oct. 22 after the censorship and Twitter’s decision to keep the New York Post’s account locked until the media company deletes tweets about the story.
The Federal Communications Commission chairman Ajit Pai announced plans to “clarify the meaning” of Section 230 on Oct. 15 following The Post’s reporting on Hunter Biden and the subsequent censorship. Pai cited the “special immunity” granted to Big Tech through Section 230 that isn’t afforded to traditional media companies like newspapers and broadcasters.
“Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters,” Pai wrote in a tweet.
“The Commission’s General Counsel has informed me that the FCC has the legal authority to interpret Section 230. Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning.”
Where did Section 230 come from?
The story behind the landmark legislation — and how it became what opponents call a teflon shield for Big Tech — was born from the dust of a historic legal showdown that all started in a New York courtroom.
In the early 1990s, Stratton Oakmont — the infamous Wall Street brokerage depicted in the Martin Scorsese-Leonardo DiCaprio movie “Wolf of Wall Street” — sued the internet service provider Prodigy, an early internet company that hosted a popular bulletin board called “Money Talk.”
In October 1994, an anonymous user had slammed Stratton Oakmont and its president on the forum and accused them of criminal and fraudulent acts related to their initial public offering.
Stratton swiftly sued Prodigy for the “defamatory” statements in Long Island state Supreme Court and won in 1995 with appeals courts upholding the decision that Prodigy was liable for the statements, treating them as a publisher.
But the ruling was a major hit for the fledgling internet — which was just taking off and hosting no more than about 10,000 websites at the time — and many lawmakers feared it would allow the public to sue the commercial internet out of existence.
Congressmen Ron Wyden (D-Oregon) and Christopher Cox (R-Calif.), caught wind of the ruling and got Section 230 passed so the internet would be free to flourish and wouldn’t be bogged down by lawsuits.
“What we often say in the tech policy space is Section 230 created the internet,” Sophia Cope, a senior attorney with the Electronic Frontier Foundation, a non-profit fighting for free expression online, previously told The Post.
What does Section 230 do?
Now, more than two decades later, Section 230 continues to play an important role in the freedom of expression online.
The law allows the public to read about a restaurant on Yelp through honest user-posted reviews and it provides a space where Americans can discuss everything from their least favorite politician to the moldy vegetables at their neighborhood grocery store.
Without it, companies could theoretically sue Yelp anytime a defamatory review was written and people who are attacked on Facebook could sue the social media platform for hosting statements that are damaging to them.
But in the 24 years since it was passed, the law — and the way the courts have interpreted it — has bloated it well beyond its original intent and has also allowed for a much darker corner of the internet to thrive, said Carrie Goldberg, a Brooklyn-based lawyer and an outspoken critic of Section 230.
Goldberg — who fights for people who’ve had their lives ruined online either from revenge porn, child sexual exploitation and stalking — believes the law takes the incentive away from tech companies to innovate their platforms to make them safer.
“Just like the car industry, if the airbags explode they can be sued for product liability and it incentivizes them to take every safety precaution imaginable to make sure that their products are safe and the public benefits collectively from the notion that any one of us could sue if we’re injured by a corporation,” Goldberg explained to The Post.
“It means that these companies have no obligation to have safe products that are free from child sexual abuse material and stalking. It means that… when there’s a serial rapist that’s using Match.com, even if Match.com knows that a registered sex offender is using their platform, they would argue that they have no liability to anybody that gets raped by this person because of Section 230.”
Section 230 has also been repeatedly cited as the reason why revenge porn websites are hard to shut down and was the primary reason Backpage, a classifieds website that enabled sex trafficking, wasn’t taken down until 2018.
What is Trump’s executive order?
Trump’s executive order challenging Section 230 focuses primarily on how platforms moderate content, arguing that the law allows tech giants to restrict freedom of speech.
“Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see,” the order states.
“We must seek transparency and accountability from online platforms, and encourage standards and tools to protect and preserve the integrity and openness of American discourse and freedom of expression.”
But Silicon Valley fears that without the safe harbor of Section 230, the opposite could happen — or the darker corners of the internet will thrive even more.
“Without Section 230, they would be swamped in lawsuits and would either over-moderate or stop moderating at all and the platform would turn into the wild west… with the worst parts of humanity [on display],” Ashkhen Kazaryan, the director of civil liberties with the think tank non-profit TechFreedom told The Post.
“If the platforms stop moderating, that’s what will happen.”
Who is calling for a repeal of Section 230?
The primary politicians calling for an outright revocation of Section 230 are Trump and former Vice President Joe Biden. Trump has repeatedly called for the repeal of Section 230 and in January, Biden made a similar call, The New York Times reported.
“The idea that it’s a tech company is that Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” Biden told The Times.
“It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.”
Swarms of politicians, many of them Republicans, have introduced legislation to curtail Section 230, including Sen. Lindsey Graham (R-S.C.), Sen. John Kennedy (R-La.), Rep. Jim Jordan (R-Ohio), Sen. Roger Wicker (R-Miss.), and Sen. Marsha Blackburn (R-Tenn.), according to reports in Politico.
What does Section 230 have to do with the 2020 Presidential Election?
While democrats and republicans alike agree that Big Tech needs more regulation, their reasons differ.
Republicans are concerned Big Tech has wielded unequal bias towards conservatives in their patrolling of content while democrats are concerned platforms aren’t doing enough to remove misinformation and other harmful content, TechCrunch reported.
Some voters are expected to consider these differences, and each candidate’s views on Section 230 and Big Tech, when casting their vote come Nov. 3.