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Vol. 37 No. 7 — October 2020

By the mid-1990s, the internet and the web had transitioned away from their military, government, and educational origins to a commerce-based environment of subscription- and advertising-based platforms, marketing and sales services, and porn.

COMMUNICATIONS DECENCY ACT

The emergence of pornography and offensive content on the internet led Congress to respond in 1995 with the Communications Decency Act (CDA), which attempted to regulate it. While most of the CDA was thrown out by the Supreme Court as a violation of free speech, a few sections survived, including what has now become notorious and controversial: Section 230 (Title 47, Section 230 of the U.S. Code).

Section 230 allowed the internet to flourish. Its key section reads, “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.” Essentially, this means that an ISP or website owner cannot be held liable for information provided by an outside user. Whether that information is obscene, offensive, defamatory, infringing, misleading, or illegal, the host of the content cannot be held liable, although the person who posted the content (if identified) can be liable.

This safe harbor—originally labeled and intended as “protection for ‘Good Samaritan’ blocking and screening for offensive material”—means that social media and other content hosts can allow third parties to post content to their sites without fear of being held responsible for the postings.

The controversy began almost immediately. When Congress enacted Section 230, the members were largely thinking about big ISPs such as America Online, AT&T, and the emerging cable and DSL broadband providers, which needed to be protected from the content posted to bulletin boards and other platforms by millions of users.

FRIENDSTER AND MYSPACE

Courts, however, interpreted “interactive computer service” to mean any website or service that allowed third parties, mainly users, to post content. This gave rise to Friendster and Myspace, followed by eBay, Craigslist, Facebook, YouTube, Yelp, Twitter, and others. All of these platforms rely extensively—nearly exclusively—on third parties providing content.

With the protections of Section 230, it is nearly impossible to hold these sites legally liable for defamation, fraud, deception, infringement, harassment, or many other illegal activities that may arise from posted content. Section 230 not only protects them from being liable for the postings, it also creates no specific obligations to identify or regulate people who post problem content, such as identifying the person who posted defamatory or fraudulent content to the victims.

NO RECOURSE

As a result, a restaurant victimized by false negative reviews has no recourse against Yelp, nor do restaurant patrons when they rely on false positive reviews. Victims of “pump and dump” schemes posted to financial websites can’t collect against them for their fraud losses. Victims of harassment, owners of infringed copyright material, and people defamed on social media have virtually no recourse against the site publishing the information, and they get little help in tracking down the actual poster.

While Section 230 has been controversial since its inception, the 2016 election cycle politicized the issue to an extent that had not previously existed. Reports of Russian and other agents using Twitter, Facebook, and other social media to post misleading information—both pro and con—about candidates has been an ongoing controversy. At the same time, others in the political spectrum complain that social media hosts are using their freedom from liability to form biases that favor certain candidates and causes.

REWORKING SECTION 230

Both Congress and the current administration are exploring options for reworking, or potentially eliminating, Section 230 protections. There are multiple proposals before Congress that would rein in Section 230 in various ways.

One such proposal, the Platform Accountability and Consumer Transparency (PACT) Act (S 4066), would require content hosts to establish acceptable use policies, set up complaint systems, and provide for the removal of “illegal” content within 24 hours and content that violates the acceptable use policy within 14 days, subject to appeal. If a content host fails to act on a complaint, it could then lose Section 230 protections.

‘PREVENTING ONLINE CENSORSHIP’

On May 28, 2020, the administration issued the Executive Order on Preventing Online Censorship, which calls for a federal review of Section 230 to ensure that content providers are not misusing its safeguards in order to “stifle viewpoints with which they disagree.” As a follow-up, on June 17, the Department of Justice issued recommendations for Section 230 reform, which call for, among other things, incentivizing good behavior by creating a carve-out from 230 for “purposefully” failing to police illegal behavior, promoting greater transparency, and increasing competition by clarifying that Section 230 does not protect companies from being found in violation of federal antitrust laws.

Reforming Section 230 is the proverbial double-edged sword. Without its protections, a very large swath of today’s internet would likely not exist. If Facebook had potential liability for every insulting post, there would not be a Facebook. If Yelp or Google Reviews was liable for an anger-driven bad review, no one would host reviews.

DOUBLE-EDGED SWORD

One example of this double-edged sword occurred in 2018, when Congress passed the Fight Online Sex Trafficking Act (Public Law 115-164). It had a laudable goal: to limit or eliminate Section 230 immunity for postings that facilitate or promote sex trafficking. In practice, critics have said it does little toward reducing sex trafficking, has resulted in higher risks for sex workers who could previously use web platforms to vet clients, and has restricted the free speech rights of consensual and legal sex workers.