Internet giants enjoy immunity that many are calling to be revealed in wake on conservative purge
Amid the recent and ongoing purge of conservatives by Big Tech, most notably the widespread banning of President Donald Trump from the Internet, calls are mounting to repeal the legal protections these Silicon Valley oligarchs enjoy.
In fact, before the coordinated purge of his accounts, President Trump was threatening to revoke Section 230 – Big Tech’s legal immunity.
Section 230 legislates Internet content and was passed into law as part of the Communications Decency Act of 1996.
Written in the earlier days of the web, Section 230 now finds itself at the center of an ongoing debate between those who believe it should be repealed, those who believe it should be modified, and those who believe it should be left unchanged.
What is Section 230?
Section 230 is part of the Communications Decency Act, passed into law in 1996, which was written to regulate online pornography, according to The Daily Wire.
In broad terms, Section 230 provides website publishers with immunity from prosecution regarding third-party content placed on their site.
Section 230 is reasonably concise and contains several key elements.
Section 230(b) includes three relevant passages regarding the policy of the United States, namely,
(1) “to promote the continued development of the Internet and other interactive computer services and other interactive media,”
(2) “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation,” and
(3) “to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.”
Section 230(c) provides “protection for ‘Good Samaritan’ blocking and screening of offensive material” and remains the focus of critics and supporters alike. It reads as follows:
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of –
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
The subject of much debate includes the phrases “any action voluntarily taken in good faith,” and the somewhat subjective definition of “otherwise objectionable” content.
Why was Section 230 first written?
Section 230 was created to deal with the problem faced by internet services — who were “required to be aware of and responsible for everything on their sites” — despite the impossible scale of the growing Internet.
Prior to this legislation, companies would usually decide to remove all content, since it became impossible to analyze and moderate every incoming item.
With Section 230 in place, platforms were provided with the freedom to choose whether or not to moderate content while being protected from any related liability.
Section 230 was developed and passed following lawsuits against Internet service providers regarding the debate over their role as publishers or distributors of third-party content.
Limitations of Section 230
Section 230(e) outlines its “effect on other laws,” having no effect on criminal law — specifically obscenity or sexual exploitation of children — intellectual property law, state law, communications privacy law, or sex trafficking law.
The definition of “publishing” under the Communications Decency Act is also relevant, with the Ninth Circuit ruling that “Publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content,” in Barnes v. Yahoo!, Inc, which determined that the Internet service provider could not be held responsible for failing to remove third-party content from their site.
This indicates that the Communications Decency Act does not provide immunity from liability when it comes to content created or developed entirely by the provider.
How does Section 230 relate to the First Amendment?
The First Amendment of the United States Constitution reads,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It prevents the state from prohibiting most forms of speech. However, private companies such as social media platforms are able to restrict or enforce speech, with such moderation rules protected by the First Amendment.
The issue of freedom of speech is often incorrectly included in conversations regarding Section 230, which relates to whether or not platforms can or should be held liable for third-party content in civil cases.
What have Donald Trump and Joe Biden said about Section 230?
Earlier in 2020, President Trump called for Section 230 to be redefined in order to make its focus more narrow and to target the alleged issue of political bias.
Later in the year following Joe Biden’s election win, he called for Section 230 to be abolished.
In January of 2020, Joe Biden proposed revoking Section 230 in an interview with The New York Times.
“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 said.
“It should be revoked because it is not merely an internet company.
“It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy.
“You guys still have editors. I’m sitting with them. Not a joke.
“There is no editorial impact at all on Facebook. None. None whatsoever.
“It’s irresponsible. It’s totally irresponsible.”
In late 2019, Biden called out Facebook specifically, saying that “I, for one, think we should be considering taking away [Facebook’s] exemption that they cannot be sued for knowingly engaged on, in promoting something that’s not true.”
What changes to Section 230 are being proposed by Congress?
There are many in Congress on both sides of the aisle who have called for changes to Section 230.
On the Democratic side, Sen. Richard Blumenthal (D-CT) sponsored the EARN IT Act — which has bipartisan support — and “is a frequent critic of Section 230’s protections.” Sen. Brian Schatz (D-HI) proposed the Platform Accountability and Consumer Transparency (PACT) Act, which calls for moderation transparency.
On the Republican side, Sen. Josh Hawley (R-MO) proposed a bill aiming to enforce a “duty of good faith,” with financial consequences if such a duty is breached.
Rep Paul Gosar (R-AZ) has advocated for the Stop the Censorship Act which would “prevent platforms from removing content that they found ‘objectionable,’” limiting their moderation abilities to unlawful content.
In June 2020, Attorney General William Barr “released a series of recommendations for how Section 230 might be reformed,” which included “new restrictions on cyberstalking and terrorism, … along with measures intended to punish arbitrary or discriminatory moderation.”
What does Big Tech think about Section 230?
Facebook CEO Mark Zuckerberg called for some form of additional regulation in February 2020.
“I do think that there should be regulation on harmful content … there’s a question about which framework you use for this,” Zuckerberg said.
“Right now there are two frameworks that I think people have for existing industries — there’s like newspapers and existing media, and then there’s the telco-type model, which is ‘the data just flows through you’, but you’re not going to hold a telco responsible if someone says something harmful on a phone line.”
Prior to testifying before the U.S. Senate in November, Jack Dorsey released a prepared statement, saying that Section 230 would stifle speech.
“Completely eliminating Section 230 or prescribing reactionary government speech mandates will neither address concerns nor align with the First Amendment,” he wrote.
“Indeed, such actions could have the opposite effect, likely resulting in increased removal of speech, the proliferation of frivolous lawsuits, and severe limitations on our collective ability to address harmful content and protect people online.”
“The world has changed since Section 230 of the Communications Decency Act of 1996 became law, but the fundamentals of online speech that led to its passage largely remain,” he added.