Should CDA Section 230 Be Changed?

In the current environment of reckoning for the societal power of Big Tech, one threat seems ever-present on the tongues of those who would cut these companies down to size. Enacting this threat is likely to have the opposite effect that many people intend, but it is still worth our consideration as an answer to problems in way the digital world affects society.

Lawmakers and regulators have threatened to transform the way social media operates on the internet by revoking a law that protects internet hosting companies from liability for third party content posted on the sites of those companies. The law, known as Section 230 of the Communications Decency Act (CDA), has affected the way the internet treats people’s posts for nearly two decades. Changing it would likely bring unintended consequences.

Both US political parties, when evincing concern about the size and power of digital social media companies, claim that the protections for lawsuits afforded by the CDA should be abolished. Both Presidents Biden and Trump have advocated for its revocation. Some see this as a simple way to punish Facebook, Google and Twitter for specific disfavored behavior. But doing so would be substantially more far reaching than anticipated, with effects on every company allowing third party comments or content on their websites. That may not be a bad thing.

In its well-crafted guide to CDA Section 230 The Verge explains that the 1996 provision says an interactive computer service cannot be treated as the publisher of third-party content, thus protecting websites from many types of lawsuits including defamation. “Sen. Ron Wyden (D-OR) and Rep. Chris Cox (R-CA) crafted Section 230 so website owners could moderate sites without worrying about legal liability. The law is particularly vital for social media networks, but it covers many sites and services, including news outlets with comment sections. . . The Electronic Frontier Foundation calls it “the most important law protecting internet speech.””

Do you think Facebook is more like a telephone company or a newspaper? It has aspects of each. The U.S. has a long history of tight regulations for the good of the general public on industries it considers to be utilities. Internet companies have tended to fight characterization of the internet or services provided there as being utilities. The LA Times and academic sources have recently argued that the Internet should be considered a utility, and the pandemic experience of working and learning at home has made the argument stronger. Revoking Section 230 would be a quick method of forcing more public responsiveness from internet companies.

The arguments in favor of eliminating Section 230 protections for social media contain substantial hyperbole and obvious false equivalencies.  Some people are saying this needs to happen because social media companies exercised too much power by blocking Trump’s accounts, and shrieking about tyranny and Constitutional issues.

Let’s not pretend this is a First Amendment question or our country “has become China” when the exact opposite is what brought this crisis to a head. The First Amendment protects speech against state action. The state is not acting here, so the First Amendment is not at issue. The state – and the President in this instance – can say anything publicly and those thoughts will be noted, published and disseminated over dozens of channels and outlets. As former president and still the presumptive head of his party, the press will continue to pay attention. Private companies can decide which content to allow on the platforms they pay for. Television news is not required to publish all of Joe Biden’s musings, and Twitter shouldn’t be required to publish all of Trump’s musings. It has been interesting to watch a group of Americans who simultaneously insisted that U.S. businesses be allowed to operate with minimum regulation also for deeper regulation of American companies in this particular circumstance.

It is also absurd to claim that private companies censoring the harmful lies and deadly provocations of a U.S. President is somehow authoritarian. In authoritarian regimes like Russian, North Korea or China, the word of the Dear Leader is not allowed to be censored; dissenters are censored. In the present social media controversy, the most powerful person in world is being de-platformed by some private companies for leading a terrorist movement that kills people while attempting to destroy proven democratic outcomes. This is the opposite of totalitarian state action – private actions taken in defiance of an attempted totalitarian takeover.¹ One of the world’s most powerful business executives, Jack Ma, may have just emerged from self-imposed exile or government censure related to the digital platforms he controls. The government, and its leaders, have a monopoly on physical and financial force. China, and other totalitarian states, threaten businesses who question them, businesses don’t censor the government.

Also keep in mind that any company that hosts comments online, from MSNBC to Fox News, from TMZ to the New York Times and everyone in between, would be affected if Section 230 were removed as a defense to lawsuits. WordPress and other companies hosting bloggers would be affected. Even companies like AT&T and Verizon, who may be providing technical hosting to the entities offering online opinion spaces could be affected and may need to change business models.  This is not simply a direct attack at Facebook and Twitter with no collateral damage.

Now that we know how deeply some people can be manipulated and twisted by online content, maybe we have reached a point where we should require the hosts of that content to be more responsive to how they are affecting our society and more accountable for cleaning up the garbage. We worship free speech in this country, but the time may have arrived for us to be more aggressive about removing harmful lies and hate speech from our digital multilogue. We already moderate content, so this would be a change in degree, not a fundamental change in kind.

One of the ways to encourage this to happen is to remove Section 230 protections from internet service providers and social media companies. So the people calling the loudest for Section 230’s revocation will be the ones who scream the loudest at the clear effects of that revocation – an internet where lies and irresponsible provocations are open to lawsuit, and therefore policed much more severely than they have been. For example, we saw how quickly online sex offers dried up and disappeared from places like Craig’s list when the possibility of host liability for the ads became an issue.

Section 230 of the CDA has performed its desired function – it showed us what an internet free market of ideas could be.  But now that we know the downside of being swamped in toxic commercial and political manipulations, maybe we open this market to the American legal system, encouraging our market to be more carefully managed for the protection of the most vulnerable. Section 230 may have lived its useful life and be ready for retirement.

¹ This is also textbook strategy for addressing the leaders of terrorist organizations like Al Qaeda. De-platforming the leadership can start to defuse the effect of inciting hate and lies.