Section 230 – Unzipped

Corporate, Eugene Bilmes

Recently a lot of political and media attention has been set on “Section 230.” Many politicians, including President Trump and President-Elect Biden have called for Section 230 to be repealed entirely, while other politicians have called for a rework of the provision. So, what is Section 230 and why are both sides of the political aisle seemingly against it?

Simply put, Section 230 of the Communications Decency Act is a statute that grants immunity to websites, including social media platforms, for what users post to them. This law went into effect in 1996, long before the Internet as we know it today existed. Now, in the age of “fake news,” social media disinformation, and accusations of online censorship, both parties are taking another look at Section 230. And even though Democrats and Republicans disagree on the why and how of updating Section 230, they seemingly agree that it needs to be addressed in some way.

Generally, Republicans do not like Section 230 because they accuse social media companies like Facebook and Twitter of hiding behind it as they quietly censor conservative voices on their platforms. Meanwhile, Democrats have pointed at Section 230 as a shield used by those same companies as they divert responsibility for disinformation and misleading or unreliable content on their sites.

On the other side of that coin, defenders of Section 230, including Twitter CEO Jack Dorsey, are arguing that Section 230 is of paramount importance for Internet free speech and online competition. Dorsey has said that if Section 230 were repealed entirely only mature, large online companies could survive the presumed avalanche of lawsuits that would follow. Defenders of Section 230 argue that repealing it would effectively kill the Internet because no one would take the legal risk of running a website where users can generate and post content. And while social media companies usually take center stage in these debates, it is important to note that this would affect the world’s largest search engine, Google, which allows users to generate and post content by posting company reviews on its platform.

Adding to this debate over the summer the Department of Justice proposed several actions it wants Congress to take into consideration to amend Section 230. Among the proposals, the DOJ wants to deny Section 230 immunity to any website which features content dealing with terrorism and child exploitation. The DOJ also wants to take away immunity from websites that facilitate or solicit unlawful content or activity by third parties (e.g., illegal drug and firearm sales and child exploitation). The DOJ also wants online companies to give a “reasonable explanation” any time they remove or change content posted on their sites, alluding to the GOP’s concerns over censorship.

Time will tell if the Biden white house will make Section 230 a priority or if addressing the ongoing Covid-19 pandemic and its human and economic cost will put that on the backburner for a while. In either case, the debate over Section 230 is not likely to end soon, and I think we can expect many more months of debate and negotiation over it and whether it should be repealed, changed, or left alone.