by Twenty-six words inserted into a 1996 law that overhauled telecommunications allowed companies like Facebook, Twitter and Google to become the giants they are today.
A case filed with the US Supreme Court this week, Gonzalez v. Googledisputes that law — namely, whether tech companies are liable for material posted on their platforms.
Justice to decide whether family of American university student killed in terrorist attack in Paris can sue Googleowner of YouTube, over allegations that the video platform’s recommendation algorithm helped extremists spread their message.
A second case, Twitter v. Taamneh also focuses on accountability, albeit with different rationales.
The results of these cases could reshape the internet as we know it. Section 230 will not be easily dismantled. But if it is, online speech could be drastically transformed.
What is Section 230?
If a news site falsely calls you a con artist, you can sue the editor for defamation. But if someone posts it on Facebook, you can’t sue the company – only the person who posted it.
That’s thanks to Section 230 of the Communications Decency Act 1996, which states that “no provider or user of an interactive computer service shall be treated as the publisher or spokesperson for any information provided by another provider of information content.” .
That cool phrase protects companies that can host trillions of messages from being sued into oblivion by anyone who feels wronged by something someone else posted — whether their complaint is legitimate or not.
Politicians on both sides of the aisle have argued, for different reasons, that Twitter, Facebook and other social media platforms have abused this protection and should lose their immunity – or at least have to earn it by complying with requirements set by the government.
Section 230 also allows social platforms to moderate their services by removing posts that, for example, are obscene or violate the services’ own standards, provided they act in “good faith”.
Where did section 230 come from?
The measure’s history dates back to the 1950s, when bookstore owners were held liable for the sale of books that contained “obscenity,” which is not protected by the First Amendment. One case eventually made it to the Supreme Court, which found it creating a “chilling effect” to hold someone accountable for someone else’s content.
That meant plaintiffs had to prove that bookstore owners knew they were selling lewd books, said Jeff Kosseff, author of “The Twenty-Six Words That Created the Internet,” a book about Section 230.
Fast forward a few decades to when the commercial internet was taking off with services like CompuServe and Prodigy. Both offered online forums, but CompuServe chose not to moderate them, while Prodigy, in pursuit of a family-friendly image, did.
CompuServe was sued for this and the case was dismissed. Prodigy, however, had problems. The judge in the case ruled that “they exercised editorial control – so you’re more like a newspaper than a newsstand,” Kosseff said.
That didn’t sit well with politicians, who feared the result would discourage moderation from newly formed internet companies. And Section 230 was born.
“Today it protects both liability for user posts and liability for any content moderation claims,” Kosseff said.
What happens if section 230 disappears?
“The main thing we do on the internet is talk to each other. It could be email, it could be social media, it could be message boards, but we talk to each other. And a lot of that conversation is permitted under Section 230, which says whoever is allowing us to talk is not responsible for our conversations,” said Eric Goldman, a professor at Santa Clara University who specializes in internet law. “The Supreme Court could easily upset or eliminate that basic proposition and say that the people who allow us to talk are responsible for those conversations. At that point, they won’t allow us to talk anymore.”
There are two possible outcomes. Platforms may be more cautious, as Craigslist did after the passage of a sex trafficking law in 2018 that established an exception to Section 230 for material that “promotes or facilitates prostitution.” Craigslist quickly removed its “personal” section, which was not intended to facilitate sex work. The company did not want to take any risks.
“If platforms weren’t immune to the law, they wouldn’t risk being held legally responsible for hosting Donald Trump’s lies, slurs and threats,” said Kate Ruane, former senior legislative counsel for the American Civil Liberties Union, who now works for PEN America.
Another possibility: Facebook, Twitter, YouTube and other platforms could abandon moderation altogether and let the lowest common denominator prevail.
These unmonitored services can easily be taken over by trolls such as 8chan, a site famous for its graphic and extremist content.
Any changes to Section 230 are likely to have a ripple effect on online speech around the world.
“The rest of the world is cracking down on the internet even faster than the US,” Goldman said. “So we’re a step behind the rest of the world in terms of internet censorship. And the question is whether we can resist on our own.”
