Section 230 and the Future of the Open Internet
Recently, some government officials have questioned the necessity of Section 230 of the Communications Decency Act (“CDA”). Repealing or significantly amending Section 230 would endanger the openness of the Internet.
The core provision of the CDA, 47 U.S.C. § 230(c)(1), states that no provider of an Internet service “shall be treated as the publisher or speaker of any information” provided by another person. By shielding providers of Internet services from liability for the speech of third parties, Congress encouraged the emergence of what the Supreme Court in Reno v. ACLU described as “a unique and wholly new medium of worldwide communication.” In particular, Section 230 enables the “vast Democratic forums of the Internet,” where anyone with Internet access can reach a global audience and directly engage with leaders and other speakers. Twenty years later, in Packingham v. North Carolina, the Supreme Court observed that social media websites “provide perhaps the most powerful mechanism available to a private citizen to be heard. They allow a person with an Internet connection to become a town crier with a voice that resonates farther than it could from any soapbox.” The Packingham Court further stated that “while we may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves and define who we want to be.”
Undermining the Section 230 liability protections would restrict the Internet’s ability to reach its full potential. Publishers typically are strictly liable for the content they publish. For this reason, they carefully select the writers they intend to publish and then edit those writers’ statements. The open Internet takes a completely different approach. Anyone can speak and say whatever they want. To be sure, if an Internet user engages in illegal speech such as defamation, that user can face legal liability. But under Section 230, the legal liability is limited to the user, and does not extend to the forum. Further, Section 230 insures that the forum does not lose its immunity if it proactively takes measures to eliminate objectionable content posted by its users.
Were Internet services to lose their Section 230 protections, they would start to behave like traditional publishers. The risk of legal liability would force them to become more selective about who could speak and what they could say. The Internet’s dynamism and diversity would wither away. Over time, the disintermediation enabled by the Internet would diminish. (The vast amount of content uploaded by users combined with the challenges of identifying objectionable content would render more aggressive filtering and monitoring, described by Matt Schruers, an ineffective approach to reducing liability appreciably.)
The individuals speaking and reading on social media websites would not be the only casualties. Small businesses seeking to establish a web presence would have to pay more for web hosting services because those services would have to scrub the sites for potentially problematic content (or purchase significantly more insurance). The Internet’s “relatively unlimited, low-cost capacity for communications” described by the Supreme Court in Reno would dwindle.
At the same time, it is far from clear that society would be any better off without Section 230. Objectionable content would still exist on the Internet; it would just move to overseas websites. Thus, there would be less “good” content on the Internet, and just as much “bad” content.
Section 230 has been critical to the leadership role of American companies in the development of the open Internet. While it is perfectly legitimate to question some of the specific practices of these companies, Section 230, the legal foundation of the open Internet, should not be undermined in the process of addressing these concerns.