It’s been called the “twenty-six words that created the internet.” Section 230 of the 1996 Communications Decency Act is a landmark U.S. law that shields social media companies such as Twitter and Facebook from liability for content their users post. The tech industry maintains that the provision allows the internet to flourish, but critics say companies either aren’t doing enough to combat harmful content, or are going too far with censorship.
President Donald J. Trump has called to repeal the law and signed an executive order attempting to curb some of its protections, though the order has been challenged in court. More recently, he threatened to veto the National Defense Authorization Act (NDAA), an annual defense funding bill, if it does not revoke Section 230. The impact of these moves on online expression could be profound.
Why was Section 230 passed?
Section 230 was conceived in response to two court cases in the 1990s that dealt with the liability of internet companies for defamatory posts on their websites. In one case, a federal court in New York ruled that the company CompuServe was not liable because it was merely a host and did not moderate any of the content on its forums. A New York state court ruled in a separate case that the company Prodigy could be held legally responsible because it policed some posts.
The authors of Section 230, then Representatives Chris Cox (R-CA) and Ron Wyden (D-OR), wanted internet companies to be able to regulate themselves [PDF] in some instances—keeping offensive material away from children, for example—without fear of being culpable for everything their users post.
What does it do?
Section 230 states that providers or users of “interactive computer services,” [PDF] which include internet service providers as well as platforms such as Twitter, Facebook, and Craigslist, cannot be treated as publishers of—and thus held liable for—content produced by others. It also allows those companies to voluntarily take actions in “good faith” to moderate content.
Courts have interpreted the law to provide internet companies with broad protections, but there are limits. A company can still be held liable for content that it creates and the law does not confer immunity for federal crimes or intellectual property claims. The 2018 Fight Online Sex Trafficking Act (FOSTA) further specified that Section 230 does not apply to violations of sex trafficking laws, though some argue this has led to censorship.
Why is it controversial?
Tech companies argue that the law allows the internet to thrive. Google’s head of global intellectual property policy, Katherine Oyama, told Congress [PDF] in October 2019 that without the law, companies could be subject to a host of lawsuits. Review sites such as Yelp or TripAdvisor could be sued for defamation by a restaurant with bad ratings, for example. The Internet Association, an industry group that represents major tech companies including Google, Facebook, Amazon, and Microsoft, has said the “best of the internet would disappear” without Section 230.
But there is opposition to the law from across the political spectrum: both Trump and President-Elect Joe Biden have called for the repeal of Section 230. House Speaker Nancy Pelosi (D-CA) has called the law a “gift” to the tech industry that could be taken away. Wyden, now a senator, has said that tech companies have not done enough to get rid of “slime” online.
To many Democrats, the law allows tech companies to avoid doing more to combat hate speech and disinformation online. To Trump and some other Republicans, it shields them from consequences for censoring conservative voices.
Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor …
Donald J. Trump, President of the United States
What will President Trump’s executive order do?
In May 2020, Trump issued an executive order aimed at limiting the legal protection offered by Section 230. The move came after Twitter appended fact checks to several of his tweets regarding voting by mail. The president has long feuded with big tech companies, arguing they are trying to “rig the election” against him and are masquerading as neutral while suppressing content they disagree with.
The order decries “selective censorship,” singling out Twitter. It directs his administration to consider regulations that narrow the scope of Section 230 and investigations of companies engaging in “unfair or deceptive” practices.
Tech companies denounced the move as a threat to online free speech, and a lawsuit challenging the order on First Amendment grounds was filed within days. Some legal experts have argued that the order will have a chilling effect on tech companies’ efforts to fight online disinformation regardless of how the matter plays out in the courts.
What happens next?
Going forward, Congress could move to repeal Section 230 entirely, says Jeff Kosseff, the author of The Twenty-Six Words That Created the Internet. If that happens, it’s not clear what would come next, he says; companies could move to restrict or eliminate user content to avoid liability, or stop moderating altogether. Other countries, including those in the European Union, have stricter rules for online content, leading tech companies to push to export Section 230 via U.S. trade deals.
“We really just don’t know how courts would interpret the First Amendment protections without Section 230 because we haven’t really seen that applied to social media,” Kosseff said.
