Section 230: what you need to know

Part Three, Introduction:  230 Reform – 
What You Could Lose, What You Could Gain: The Solution Framework
 
Let’s start with a recap. 
 
Part One shared that Section 230 is meant to (emphasis added):
 

• Encourage the creation of interactive services that further the promise of creating 
  “forums for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity”  
• Encourage the development of “technologies which maximize user control” and blocking / filtering tools that “empower parents to restrict their children’s access to objectionable or inappropriate online material”
• To this end, they are immune from liability for:
  • Content posted by third-parties that may incur a civil violation (remember, the third-party poster remains liable)
  • Taking steps to self-regulate the content on their websites and, in fact, are encouraged to do so 
• They are on notice that “Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer” will be vigorously enforced. 
  

 
Problem areas identified in Part Two are:

• Concern re: selective removal of speech, especially when an online company could be considered a significant information distributor.  Therefore, inappropriate removal/censorship of content. 
• Concern re: not identifying and removing content that creates specific types of harm.  Therefore, expectation that they have a responsibility to remove content and, thus, inappropriate content is not removed.
• Concern regarding responsibility to remove content come up where:
  • Prohibited Content, content prohibited by criminal law, remains online as undetected or because a company is unable to verify it’s prohibited.
  • Illegal Speech, content that is covered by civil law, where existing enforcement mechanisms may create unintended obstacles or blocks for the victim.
  • New Harms, where there is content that is newly understood to create harms but where there are not laws or guidelines that address them.

How Do We Fix This?  
 
Repeal Section 230?  
At the outset, I want to put on (and then remove from) the table the idea that Section 230 should be repealed.  It’s simply not possible.  Well, ok sure, it’s possible but completely disastrous and unworkable.  It would stink for all of us.
 
Here’s a glimpse.  
 
Without protection from civil liability (which is what Section 230 does), Facebook, Twitter and the like will still exist.  There would still be social media companies.  Removal of Section 230 won’t ensure a change in behavior but it likely would ensure that they’d be forced to leave the US.  En masse.  They’d have no choice.  
 
Online websites that are designed to enable people to engage and express themselves on the internet are here to stay.  Consumer demand for websites that provide engagement is increasing.  Moreover, no one cares or bases their use of such a website on whether the company is based in the US.  (For a great example – think TikTok.)  In other words, when an online company matches consumer demand, company location is not a deciding factor, at least today.  
 
Repealing Section 230 would have immediate effects.  Existing US companies that allow third party content would have to move outside of the US to continue to exist if there isn’t a Section 230.  And, it would hamper the innovation of new online companies such as these in the US. Their liability would be too great.  The exit of entrepreneurism, economic growth and jobs related to the internet would follow because most of what’s online will certainly continue to have some interactive component.  
 
The exit of these companies would create larger problems for those of us in the United States.   Let’s start with civil liabilities.  You would have practically zero ability to enforce your rights with respect to content that violates US civil law in such a changed online world.  Why?  Because, assuming you have a successful judgement that determines content online about you is Illegal Speech, you still need a company to agree to remove content based on this judgement.  Now, these companies would be outside the US and not subject to US law.  Your other alternative would be to sue these non-US companies in order to force them to remove content.  Even if you have the money and ability to sue a company outside the US, let’s say, in Ireland – you would have to find and hire local counsel to file your lawsuit in Ireland, the right you are seeking to enforce would have to exist under Ireland’s law and Ireland’s law would have to allow someone like you (who didn’t live there) to take advantage of it. Your ability to enforce your US based civil law rights in another country doesn’t exist.  
 
It’s less promising for the enforcement of criminal US laws against companies that exist abroad.  While criminal laws remain intact under Section 230, they are intact to enforce against companies that exist in the US and/or are subject to US jurisdiction.  These laws don’t apply outside of the US.  A majority of third-party content and social media companies are based in the US and subject to US law, which provides you protection under US criminal law.  They are in the US for a lot of reasons that absolutely include Section 230.  But, if they had to leave the US, know that a company without a US legal presence could allow a third-party to post content about you that is otherwise criminal under US law.  And, there is likely nothing you could do about it.  Thus, a repeal would not only torch our civil rights, it’d blow up criminal harms we are trying to prevent because we have driven the largest existing tech companies and future ones out of the US.       
 
If these reasons don’t have you convinced, there is another one that I believe may eclipse them all.  Section 230 truly is the reason why you have free speech online.  Without it, minority voices and opinions have limited online avenues for expression.  For clarity, “minority” in this context is not the color of your skin, your religion or your ethnic background.  It is much broader than that.  It is your belief, point of view about anything happening in your life, community, country or the world that may run counter to that of a larger group.  Your ability to share these things and, as a bonus, find and discuss online with likeminded people would be virtually non-existent.  
 
What happens when you want to call out injustices to you, your community or other injustices that you believe are happening?  No one would allow it on their website.  You could have a website of your own; but, single websites lack the collective distribution power of larger, established ones.  Some very established Section 230 online companies may serve to give free speech, liberation to other countries. But, leaving those outside of the United States, I propose that, without it, neither you, I or our country would have learned about George Floyd and other victims that put faces, names and unforgettable details to the ongoing abuse against Black Americans. You probably would not find  online forums that would have allowed you to express that you believe the 2020 election was stolen.   
 
Whatever your beliefs, a single defining and uniting principle is at stake.  It is that, in the United States, you enjoy the constitutionally protected human right that is guaranteed by our government to speak freely.  This core freedom is also embraced (with the help of Section 230) by online companies that want to protect your ability to speak your views and beliefs.  You and I will likely never convince a newspaper to publish our opinions/beliefs, despite our newsworthiness, if they can’t be fact checked and proven.  And, we probably couldn’t build a powerful community of like-minded people with the same views by word of mouth.  The equalizing channel that could be an avenue for your opinions and hold the opportunity of building a like-community is via the avenue of the internet. The viability of this avenue is tied to Section 230.       
 
In sum, the losses you stack up if Section 230 is repealed are:  Loss of the ability to enforce your US civil law and criminal rights, the loss of the ability to truly speak your mind, and the loss of the economic growth and jobs related to online companies.
 
Everything you want to protect requires that companies have to be able to exist in the US which, in turn, requires Section 230.
 
For the US to retain the vast advantages of economic growth on the internet, interactive companies have to be able to exist here.  To be able to protect yourself against US legislated civil harms regarding online content, the company where the harm occurs must be able to exist here. To ensure US criminal laws count, the companies that you are looking to regulate must be able to exist here.  To empower you to exercise your US constitutional right to, and US embraced, freedom of free speech – i.e. your ability to express your views (no matter how unpopular or how different from what others believe) and connect with others to discuss these views, the companies most able to provide this to you are the companies that are able to exist here.  If you value any of these four, you have to agree that we cannot repeal Section 230.  Instead, the smarter, easier and most effective thing to do is to fix it.  
 
Components of the Solution.  
 
We’ve identified a majority of issues that are creating problems attributed to Section 230.  To comprehensively address them, solutions must include three things that are at the heart of being successful. They are:
 
1) All appropriate laws must be on the table.  Section 230 doesn’t stand alone.  It is part of a broader system of legislation.  So, which law is the appropriate one to amend?  Not everything can or should be addressed by amending Section 230.  For example, if the harm you want to fix is the unauthorized online publication of your personal information, like your driver’s license or home address, a federal or state privacy law is possibly the more appropriate place because privacy laws address the use of personal information.  Similarly, where any other federal law interacts with Section 230, it may be more appropriate to amend the other federal law to address how it interacts with Section 230 plus any other laws.
 
2) Language, language, language. Care must be taken with the language used for any amendments, Section 230 included, to make sure there is clarity on the change and how it interacts with other laws.  It also should be written to ensure it protects the values you seek to protect and it encourages the behavior you seek to encourage.  
 
3) Implementation components, such as verification + enforcement guidelines, are where the law becomes real.  It is imperative that, when drafting the language of any legislation, you account for the “how” in which laws are verified and enforced because this is where legislation is prone to fail.  
 
Let me share an example.  In March 2020, when COVID struck the US, I created and led a global COVID Task Force for an online, US-based client.  Our goal was to preemptively identify and remove COVID content that was abusive.  In an integrated, global effort, I worked directly with the heads of US federal law enforcement and global government agencies.  
 
On March 23, 2020, Executive Order 13910 was signed by the president which banned hoarding and price gouging.  The Task Force moved to immediately add the terms of the ban to the monitoring mechanisms we put in place.  For our purposes, the content likely to show up online that would violate this EO would be where someone was selling online things like personal protective equipment (PPE) at prices that equaled “gouging.”  Therefore, to implement and comply with the EO required that one could determine if an online price qualified as “gouging.”  But, the EO didn’t say what would qualify as “price gouging.”  The most it said about price gouging was “prices in excess of prevailing market prices.”  No one, at that time, knew what would be considered prevailing market prices for basic things, like toilet paper, because you could no longer get it in your grocery store or in most places on the internet. PPE was worse.  
 
The Task Force worked directly with a leading manufacturer of PPE to combat abuse where they were being impersonated.  Even though this company shared their retail prices with us, those prices could no longer be used to assess whether an online price for their products was “gouging” because of all the new intermediaries who were part of the distribution process.  These new parties in the distribution process absolutely increased the final retail prices, but this didn’t mean that any of the parties in the distribution chain was actually “gouging” prices.  
 
For the record, I’m not picking on this EO – it was the right thing to do and everyone did their best to work with it.  It is, though, a perfect example to illustrate the significance of language, and it highlights the details needed to enable companies to self-verify and enforce a legal prohibition. At a minimum, law enforcement needs to know and be empowered to communicate what they are looking for.  
 
Implementation:  An Under-Utilized Enforcement Resource.    
 
This example also illustrates a significant enforcement mechanism that is often overlooked in the legislative drafting process but that should be considered and accounted for. 
 
The majority of US based companies (and companies with a US legal presence) that host third-party content intend to comply with criminal laws and will put in place ways to self-monitor and comply, provided they have the information needed to do so.  Collectively, they can be a powerful mechanism of enforcement in their own right. 
 
To engage this force, legislative language and accompanying guidelines must understand what businesses need in order to self-verify and comply.  The earlier example on price gouging demonstrates a law that a company can’t self-enforce.  In contrast, a law that is clear in stating, for example, that you cannot sell opioids which are defined as X, can be executed by companies.  A website can self-monitor for it.  A hosting company (who provides hosting services for a website) can self-monitor for it across websites that use their services.  Consumers and agency watchdogs can identify it and report it using established company abuse reporting channels.  Enforcement capability multiplies because there are now adequately informed parties at every level.
 
Not every law is amenable to this kind of crisp evaluation.  But, that’s not an excuse.  Laws must be written to consider how companies can self-monitor to comply.  
 
Section 230 is a piece of legislation that has fueled online growth and enabled free speech on the internet.  For twenty-five years it has remained as originally written.  There are issues, sure.  But, all are issues that can and must be addressed because repealing Section 230 cannot be an option.  Using the what we’ve learned so far, let’s look at how to address the issues associated with Section 230.