Section 230: what you need to know
No doubt you’ve heard complaints about Section 230. In this three-part series, my goal is to provide you with the mission behind Section 230, the current complaints from both our Republican and Democrat representatives as well as everyday citizens, and, lastly, ensure that we collectively understand the reasons to tread carefully with Section 230 reform and provide the questions that should be answered to guide its amendments.
Part One: What is Section 230? Why was it created and what does it do?
In Part One, I want to share the “why” behind the creation of Section 230. I also want to share how it evolved to include some additional protections and what it means today.
Section 230 (officially 47 U.S. Code § 230) is an amendment to the Communications Decency Act (CDA) that was passed into law in 1996. The CDA was originally viewed as restricting free speech on the internet. And, indeed, many of its original provisions were struck down on that basis. The exception is Section 230, which remains intact today.
What led to Section 230’s enactment?
At the time Section 230 was under consideration, the internet was in its infancy. The first version of what we know as today’s internet was created in 1989. It had yet to be adopted broadly when it took a couple of major steps in 1995 when Amazon, Yahoo, eBay and Internet Explorer all launched. Around that time, Congress conducted research which recognized the potential of the internet and based Section 230’s enactment on the following findings [original language, emphasis added]:
1. The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources.
2. These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
3. The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
4. The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
5. Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
In other words, Congress proactively recognized the potential of the internet, and the potential of services that are based on it, to benefit Americans. The potential recognized included broad reaching options for educational and informational purposes. Also, significantly, a primary purpose of Section 230 was to provide the means for Americans to have a diversity of political discourse and minority voices. It’s meant to empower the sharing of information and opinions with limited government regulation.
Section 230 has specific goals [original language, emphasis added]:
1. to promote the continued development of the Internet and other interactive computer services and other interactive media;
2. to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
3. to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
4. to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
5. to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
To understand the policy goals, you need to put them in context of the times.
Before 1996, none of the big tech companies were big. In fact, almost none of them existed. The tech leaders who are subject to Section 230 and under fire today were only created after the passage of Section 230. Check it out (company + year created):
In 1996, the internet had not stepped into its potential. Frankly, if like me you were in the professional sphere at that time, no one (companies, entrepreneurs and everyday people) knew how to use it.
It’s obvious from the list of successful companies that were created after Section 230 (and – these are just the brand names you’d know), why Section 230 is attributed as the basis for the growth and expansion of the internet. Let’s clarify – of the internet. And, as you may recognize from the companies listed, it created the opportunity for US based entrepreneurial growth on the internet.
What Does Section 230 Do and How Did It Support Internet Expansion?
Prior to Section 230, there weren’t a lot of websites. Amazon and eBay were fledglings focused on online sales. Yahoo and Internet Explorer were innovations whose promise was to help us find stuff on the internet.
None of these were content companies in the sense of having news, information, and/or the sharing of opinions/thoughts by third parties directly onto their website. Companies who wanted to host this type of content, by necessity, generally fell into two camps: 1) they created websites to share content directly about their own company; or 2) they were news organizations that were subject to the standard review process that governs news. Why? Because each company was directly liable for the content on their sites – regardless of who posted it.
Here’s how it would work. Let’s say that I wanted to create a website where consumers could share reviews of their experiences at restaurants. Pre-Section 230, as the owner of the website, I would be personally liable for any reviews posted. Liability could be for statements viewed as slanderous, defaming, illegal use of images… and on and on. I could be liable for damages awarded for any successful claim and I’d have to pay my own legal costs. Moreover, even if the claim wasn’t successful, it was highly probable that I’d spend unknown attorney fees fending off potential claims. In sum, the costs of potential liability existed where claims: 1) were valid as legally inappropriate or 2) the reviews were accurate, but the complainant aggressively and legally tried to pressure a response through lawsuit. Either way, I'd incur legal fees to defend my website and may also have to pay damages.
In everyday language – You Get Sued.
You were sued because someone (that’s not you) said that something objectionable. You may have had no opportunity to consider or review. But, because you created a place for voices and posts, you were legally on the hook – regardless of whether you had the tools or information to evaluate the legality of the post. Moreover, there was zero law on the topic that could provide a respite for you to reasonably figure it out.
I don’t know about you – but, under those terms, I’d never have created something that would have allowed third party content and opened me up to unknown liability. The result, unsurprisingly, was that, like me, no one wanted to allow a third-party post because they weren’t sure if they were legally exposed because:) they didn’t know the veracity of content first-hand; 2) they didn’t know if the content had legal liability implications; 3) they had no way of knowing whether the content would be controversial and simply stoke litigation (regardless of whether the content was legally ok).
So, while it remained straightforward in how someone exercises their rights against potentially inappropriate content, this also created a disincentive for free speech and discourse on the internet. There was no space for minority and/or unheard voices, even my own, because the internet is so public and the ability to sue so easy.
Section 230 changed everything.
With the passage of Section 230, freedom of expression and innovation on the internet was given (almost) free reign.
The key language of Section 230 states that "[n]o 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." See 47 U.S.C §230(c)(1). In a 1997 seminal case entitled Zeran vs. America Online, Inc,, a federal appeals court interpreted this language:
“ By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.“
The court also noted that Section 230 was enacted in response to an earlier pre-Section 230 case that held a service provider liable for third-party postings as if they were the original “publisher” (a.k.a. the party who actually posted). See Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995). In Stratton, Prodigy had advertised that it would moderate content posted on its bulletin boards and Prodigy had a history of actively screening and editing posts. On this basis, the court held them to the standard of being the original publisher. The decision created a disincentive for companies to moderate content posted on its site. Section 230’s purposes included the goal of removing any disincentive to self-regulate, which the court recognized in Zeran.
Zeran ensured that service providers can permit or deny the posting of third-party content and be immune from liability. This didn’t change existing laws. Nor was Section 230 intended to do so. Service providers are not immune from the consequences of their own posts. If they directly post defamatory statements, they are liable for their own acts. Equally, third parties are still fully liable for posts that they make.
What’s notable and significant about the Zeran decision is two-fold. First, it seeks to ensure Section 230’s purpose of encouraging self-regulation without unintended consequences. Second, it tightly links liability solely to the person who committed the overt, violative act – i.e. the third party who made the post.
Post-Zeran in 1997, here is how the Section 230 / internet landscape shaped up for service providers.
Internet Service Providers are:
This looks pretty great.
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Jenn Suarez, CEO