Overview

Section 230 of the Communications Act of 1934 refers to a section of internet legislation in the U.S. that was passed into law as part of the Communications Decency Act of 1996. The law is most well-known for providing immunity to website publishers from third-party, user-generated content and was developed in response to lawsuits against internet service providers in the early 1990s. Though its protections aren’t limitless, Section 230 is widely viewed as a key law and protection that’s allowed the internet to thrive. Since it was passed in 1996, the law has been challenged several times over the years, as well as amended, but has been highly debated since 2016 regarding the protection of social media companies.

Background

In the early 1990s as the internet became more widely adopted, online forums consisting of user-generated content began causing problems for internet service providers (ISPs). A number of legal cases that placed these service providers at fault for the content created by their users resulted in challenges against CompuServe and Prodigy (shown below). Initially, CompuServe refused to regulate such content, while Prodigy created a team of moderators to patrol its users. In two key legal challenges, CompuServe was ultimately found not to be at fault for its stance on choosing not to moderate, while Prodigy was held responsible for taking an “editorial role” with its customers’ content.^[1]

Shortly after these cases, ISPs addressed the issue with the challenges to Congress, citing concerns that it would suppress the growth of the web. Also during this timeframe, the Communications Decency Act was being prepared by Congress, and after a grassroots movement within the tech industry to challenge the bill, Congress concluded that requiring ISPs to moderate content would label them as publishers under the First Amendment and make them liable for user-generated content. As a result, representatives Chris Cox and Ron Wyden wrote the House bill's section 509, the “Internet Freedom and Family Empowerment Act,” which overrode the decision from the Prodigy case so service providers could moderate their content. As part of the Telecommunications Act, Section 509 became law as Section 230 of the Communications Act after passing both Houses and being signed by President Bill Clinton in February 1996.^[2]

Upon passage, Section 230 provided immunity from liability for service providers and users of an interactive computer service who published information provided by third-party users, but providers were still required to remove content that’s illegal on the federal level.^[3]

Developments

Stop Enabling Sex Traffickers Act

Section 230 was amended in 2018 by the Stop Enabling Sex Traffickers Act (FOSTA-SESTA), which required providers to remove content violating federal and state sex trafficking laws. This amendment came about as the result of major sites and social media platforms cracking down on such content, subsequently spawning more obscure websites that profited from the shift to their platforms. Backpage was the most notorious example of this, and though initial court cases protected it under Section 230, Backpage was investigated by Congress in early 2017 and found it complicit in aiding and profiting from sex trafficking.^[4] FOSTA-SESTA bills were then introduced in August 2017 to modify Section 230 to exempt service providers from immunity when dealing with civil or criminal crimes related to sex trafficking. The bill passed both Houses and was signed into law by President Donald Trump in April 2018.^[5]

FOSTA-SESTA were criticized by both pro-internet and free speech groups for their weakening of Section 230, which some viewed as a form of censorship. Some online sex workers also criticized the bills over concerns that they would affect their safety since platforms used to offer sexual services in a legal manner dwindled or shut down due to the threat of liability.

Social Media Protections Under Section 230

Following the 2016 elections, big tech companies, including Google, Apple, Facebook and Twitter, faced scrutiny over the alleged Russian interference during the elections, sparking a debate over Section 230’s protections for social media companies. The debate stemmed from concerns about platforms not doing enough against users that used their outlets for hate speech and harassment, but also displaying a bias against certain political perspectives when moderating content.

In February 2020, the Department of Justice (DOJ) began an antitrust probe into big tech companies under Attorney General William Barr regarding Section 230 and its protections, which some said was only intended to protect early internet growth before companies were stable. In June 2020, the DOJ^[6] issued four major recommendations to Congress that would modify Section 230.

In March 2020, the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act^[7] was introduced as a bill to the Senate that would create a government-run commission to establish best practices for the detection and reporting of child exploitation materials. EARN IT advanced from the Senate Judiciary Committee in July 2020, and was introduced to the House in early October 2020.

In October and November 2020, hearings took place involving the discussion of big tech and the protections of Section 230, which included Google CEO Sundar Pichai, Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg, which also revolved around the 2020 election]

Search Interest

External References