Who's responsible for content posted on the Internet? Section 230, explained
Congress adopted Section 230 of the Communications Decency Act, 47 U.S.C. § 230, in 1996, at a time when cyberspace was young. The basis of Section 230 is the concept that holding websites legally responsible for user-generated content could disable the swiftly growing Internet.
Calls for reform of Section 230 have often been in the news in 2020. In this article, we break down what the law does, what people are saying it should do, and what might happen next.
What is Section 230?
Hailing the Internet as “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity,”1 Congress in 1996 passed Section 230 as a means “to promote the continued development” and “preserve the vibrant and competitive free market that presently exists for the Internet,” as well as “encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools,” among other rationales.2
Section 230 says that an “interactive computer service”3 will not be deemed to be the publisher nor creator of any content posted to the service by third parties.4 It goes on to state that interactive computer services will not be held liable for content moderation decisions made in “good faith.”5 Section 230 has exceptions for copyright violations, sex work-related advertising and content, and violations of certain other federal laws.
As a practical matter, Section 230 has been crucial for social media networks and any other platform whose lifeblood is user-posted content, but really any website or service which allows users to post in a comment section benefits from the liability protections provided by the law. At a recent Senate Commerce Committee hearing, Google CEO Sundar Pichai lauded Section 230 as “foundational to US leadership in the tech sector.”
Why has Section 230 been in the news?
On May 28 2020, President Trump issued an Executive Order calling for Section 230 reforms and directing the National Telecommunications and Information Administration (NTIA) to petition for a rulemaking at the Federal Communications Commission (FCC). The FCC opened a docket for the rulemaking in August and accepted public comments through September 17, 2020. The Executive Order also began to establish a path forward for other federal agencies to take action regarding Section 230. For example, the Order gave support to individual website users’ complaints about alleged bias in content moderation practices and encouraged the FTC to investigate.6
The Department of Justice has been particularly active on Section 230. Following a series of workshops, written submissions, and draft recommendations, in September 2020 the Justice Department sent draft legislation to Congress with a number of proposed reforms. Among them was a proposed statutory definition of “good faith,” which would limit Section 230’s liability protections to only those content moderation decisions that have been “done in accordance with plain and particular terms of service and accompanied by a reasonable explanation.”
What are the arguments for and against the current approach to Section 230?
Section 230 is rooted in the idea that an online platform serves as a conduit for the free speech of others and is not a speaker or publisher itself. Preserving this principle is of paramount importance to those defending the current approach, and one writer contends that it is actually impossible to moderate content in the volumes currently experienced by major online platforms.
Criticisms of Section 230 vary, but they all agree that times have changed. Section 230 was originally intended to allow the early Internet to develop and flourish, but the Internet in 2020 is vastly different than it was in 1996. In the last 24 years, the Internet has also allowed certain things to flourish that should not have - not least, misinformation, online harassment, sex trafficking, and sales of illegal goods – so there is a need to curb such activities. On the other hand, others express concern over the removal or censorship of political speech.
Most calls for reform fall into three categories. The first category argues that Section 230 affords websites too much discretion in how they moderate content, resulting in arbitrary decisions that some users call unlawful censorship. The second category argues that the law’s far-reaching protections allow platforms to turn a blind eye towards harm that is happening their users. A third category contends that Section 230 is too broad as currently written and provides too much cover to websites that ultimately facilitate online harassment, deceitful speech, revenge pornography, and illicit commerce.
Why should businesses care about possible Section 230 reforms?
Section 230 is sometimes referred to as “arcane” or “obscure,” but reforms could have real ramifications for any entity that is running an “interactive computer service.” For example, in 2018, Congress adopted the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA),7 which amended Section 230 to exclude from its protections any content deemed to “promote[] or facilitate[] prostitution” in an attempt to combat online sex trafficking. Following the adoption of FOSTA, many sites felt compelled to take much greater control over user-posted content or disallow certain types of posts altogether, out of concern that past or future users might cause them to violate the law (which applies retroactively). Local goods and services exchange giant Craigslist decided to do away with its Personals section entirely to reduce its potential legal exposure. Put simply, Section 230 reforms could take any number of forms, but they are likely to have meaningful and lasting impact on the technology space.
What happens next?
President-Elect Joe Biden has expressed an intent to look at Section 230 reform. Members of Congress of both parties also agree that change is needed, even though there is no consensus on how to go about it.
Agency action also seems possible, although not right away. The FCC recently asserted its authority to initiate the rulemaking called for in the Executive Order. At this writing, Commissioners Jessica Rosenworcel and Geoffrey Starks have called on current Chairman Ajit Pai to refrain from taking action on the Section 230 rulemaking. It remains to be seen what the FCC majority will do between now and Inauguration Day, and what action (if any) the Commission will take over the long term.
Clarity or reform on Section 230 will also likely be shaped through the courts, in time. In October 2020, the Supreme Court denied certiorari to a case which would have addressed Section 230, with Justice Clarence Thomas opining separately that the Court should consider Section 230 if a better-suited case presents itself.
All in all, even though new laws, regulations, or legal interpretations likely remain a long way off, the slow-moving gears of reform have begun to turn for Section 230, and that could, one day, have wide-reaching ramifications for technology companies.
For questions or further insight, please contact Dana Zelman.
[1] 47 USC § 230(a)(3).
[2] 47 USC §§ 230(b)(1)-(3).
[3] “Interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 USC § 230(f)(2).
[4] 47 USC § 230(c)(1).
[5] 47 USC § 230(c)(2)(A).
[6] Exec. Order at Section 4. In May 2019, the White House launched a “Tech Bias Reporting tool,” which accepted complaints of alleged incidents of online censorship. Id. The White House said it received over 16,000 complaints, which were turned over the FTC.
[7] FOSTA is also sometimes referred to as the Stop Enabling Sex Traffickers Act, or SESTA, which was an earlier iteration of the legislation.
