It’s worth mentioning that when I first decided to write about 230, there had been no Capitol riot, and things seemed a little bit more normal than they do today (relatively). But for the next few paragraphs, let’s pretend it’s all as it was 48 hours ago, shall we?
Last week we all waited on tenterhooks to see if struggling Americans would receive $2,000 stimulus checks (spoiler: no). Incidentally, that’s when a lot of Americans heard about Section 230 for the first time.
So, Section 230, also known as “The 26 Words that Created the Internet,” is a federal law that shields online platforms from liability over user-created content, but empowers them to remove content they deem inappropriate. Or, in the case of Twitter and presidential tweets, content they deem false.
On the surface, that seems like a good thing. Platforms like Facebook can remove inappropriate or false content, and they’re protected against liability in case one of their billion users says something that crosses a line. 230 allows “interactive computer services” to effectively run a social network or a news comment section, because it releases the service from liability. They don’t have to be responsible for what their thousands or millions of users think or say. It clarifies what we know instinctively — that Facebook isn’t news.
Back in the 1990s, services like Prodigy and CompuServe set the stage for our understanding of what an internet service could or should do. CompuServe moderated nothing. They were sued for defamation based user-generated content.
Prodigy’s moderators were active, and removed content they deemed inappropriate. They were also sued for defamation based on user-generated content.
And here’s where the distinction is born.
The suit against CompuServe was dismissed, because a judge decided it was an electronic newsstand. Prodigy, on the other hand, because they were ostensibly moderating their content, didn’t escape it.
So that’s where the drive for Section 230 began. Congress said, “hey, we want platforms to moderate content. We don’t want neutral conduits.” But we’ll protect you from litigation.
4Chan / Newsstand
That makes sense, right? We would neither expect nor want the 4chans of the world to be granted the same legal status as the New York Times.
So the problem was never with the section itself but with the fact that we haven’t yet grappled with frictionless, internet scale when it comes to published content. And, as is often the case with legislation, with misinterpretation.
Critics see Section 230 as a way for social media companies to abuse their power through political bias. Insert images of President Trump accusing Twitter of bias against him, or even of Facebook’s announcement today that his account had been permanently suspended.
Speaking of Facebook, there’s an interesting angle there to think about. Facebook isn’t simply hosting forums which people find by looking for them; they are picking and choosing winners to promote and spread. That blurs the lines a bit when it comes to being a “publisher.” But they still enjoy the legal protections of a newsstand. They are influencing what you see, but claiming neutrality.
Imagine if everyone had their own, personal, algorithmic copy of the NYT. How hard would it be to hold them to any standard? Plus, Facebook serves the entire world. So the idea that our, U.S. notions of free speech are equally applied and supported elsewhere is pretty shaky.
And there are the later additions that really make the bill even more problematic. 230 also includes the catastrophic FOSTA-SESTA bill that increased the danger for sex workers and did nothing to reduce sex trafficking.
230 certainly can’t stand as it is, and the repeal isn’t a terrible idea. Online platforms do need protection, but 230 is badly written and perpetually misinterpreted. And…we simply don’t know how to do it right, yet. Things that seem obvious to us now took decades of legal and legislative back-and-forth to figure out.
The Future of Moderation
While this recent attack on the bill was most certainly based on Trump’s personal, ongoing feud with the social media platforms, the end of his term won’t render Section 230 safe.
In January of 2020, Joe Biden suggested its total repeal.
“The idea that it’s a tech company is that Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” he said. “It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.”
It may be that it’s one of the first things we see in this brave new administration.
You know, after they clean up all the broken glass from yesterday’s siege.