Reforming Section 230

-- By MarvinGalloway - 11 Mar 2021

Section I (Section 230)

Section 230 of the Communications Decency Act has been under much scrutiny from various political actors for quite a while. With the culmination of the 2020 Presidential election, it once again has been at the forefront of discussions addressing the perceived need for more intensive internet regulation. While the debates regarding its status and applicability remain rather inconclusive, many seem to be built on misunderstandings and flawed perceptions of Section 230’s purpose and effect.

Subsection A (Background)

When Section 230 was passed as an amendment to the Telecommunications Act in 1996, with overwhelming bipartisan support, it was viewed as a tool to incentivize self-regulation by companies such as CompuServe? and America Online with regards to user-generated third party content. The immunity provision of Section 230, safe for a few exceptions, provided internet intermediaries with protection from liability for such content and was intended to create a safe haven for innovation by reducing the threat of litigation.

Marvin, you should complete your first draft now.

Subsub 1 (Legislative History)

By the early 1990’s, widespread use of the internet began to take place in most parts of America and with it concerns over the moderation of content caught the eyes of lawmakers. Internet-service providers were increasingly unsure how to navigate the thin line between being distributors of content and being publishers of user-generated content. While the differences may have appeared to be miniscule at first sight, legal liability drastically differed for both. With distributors mostly protected and publishers not, Congress sought to establish a rule that provided a shield from liability while simultaneously ensuring that some form of moderation was available to platforms themselves. Finally, in 1996 both houses of Congress passed, and Bill Clinton signed the Telecommunications Act of 1996 of which Section 230 was a part of.

Subsub 2 (Case Law)

The first major challenge to Communications Decency Act and Section 230, Zeran v. America Online, Inc. was brought in 1996 in which the district court ruled for the defendant-online service provider. Furthermore, it was upheld by the United States Court of Appeals for the Fourth Circuit in 1997 and the court held that distributors should be considered as a subset of publishers, which in light of the textual language makes Section 230 applicable to such. Additionally, the court ruled that Congress’ clear expression of intent favored retroactive application of the provision to content create before its passage. Similar decisions followed, all emphasizing that Congress intended to shield distributors from liability to allow growing businesses to focus on developing rather than protecting themselves and thus avoid high legal fees in favor of investment.

By the late 2000’s however, certain websites again attracted scrutiny by lawmakers. Primarily, the old issue of content distribution vs. content moderation/publication arose again as the center of attention. In Fair Housing Council of San Francisco v. Roomates.com, LLC, the Ninth Circuit ruled that the creation of profiles that required users to state their race and gender, as well as the preferred race of users to be matched with amounted to a violation of the Fair Housing Act. This was of significance since it eliminated the notion that practically all service providers possessed immunity. Subsequently, the FOSTA-SESTA bills of 2018 furthermore curtailed the broad immunity section, excluding litigation targeted at crimes related to sex trafficking and thereby making internet service providers liable.

Section II (Reform Efforts)

With a broad outline of Section 230’s history laid out; one can assess the various critiques that it has faced recently. Calls for its reformation or elimination have come from numerous actors, whether political or private. Former President Trump notoriously engaged in a feud with Twitter and at multiple times threatened to either use Section 230 against the platform or to urge Congress to repeal it. On the other side, while campaigning, Joe Biden likewise called for a repeal of the provision to hold service providers accountable for their role in the distribution of fake or misleading content. The issue however seems to not be rooted in a lack willingness to transform or modify Section 230, but rather a fundamental disagreement in why it should be changed and how.

Subsection A (Conservative Bias, Neutrality, and Fake News)

Republicans such as Senator Hawley have repeatedly accused social media sites of acting biased towards conservative political views and have thus proposed adding a neutrality requirement to the immunity provision. Effectively, this would force platforms to be certified as “neutral”, both by design and through their respective moderation decisions before being shielded from liability. While there has been little hardened evidence of a particular bias towards conservatives, such a neutrality requirement seems to be at odds with both the First amendment and the original intent of Section 230, which was to incentivize self-regulation without stifling development.

Democrats on the contrary have called for increased content moderation by platforms and have threatened to repeal the immunity provision if more stringent enforcement of protections against hate speech do not take place. Proactive moderation in order to keep a liability shield could certainly be interpreted to be philosophically opposite of the neutrality proposals made by Republicans.

Subsection B (Why Section 230 should survive)

In this section I aim to discuss reasons why reforming Section 230 seems unfeasible and unlikely. Furthermore, I want to point out how. Currently proposed alternatives possess intricate downsides as compared to Section 230 in its current state.

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