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Should there be reforms to the federal law that protects internet platforms from being sued based on material posted by their users? The obvious answer is a resolute: “Mmaaaaybee?”
On Friday, AEI held a panel discussion hosted by Jim Pethokoukis and including myself with experts Danielle Citron of Boston University and Jeff Koseff of the US Naval Academy’s Cyber Science Department, exploring whether Section 230 of the Communications Decency Act (CDA 230) deserves a fresh look in Congress.
In 1996, without fanfare, Congress included CDA 230 in telecommunications reform legislation. By protecting “interactive computer services” from liability as publishers or speakers for what their users post, it presaged and arguably helped create the explosion of online content and the growth of internet giants such as Facebook, Google, and Apple, over the next two decades.
But along the way CDA 230 allowed internet users to perpetrate various wrongful and illegal acts, from ordinary defamation, to luring and child endangerment, to vicious impersonation frauds, and more. Section 230’s protections were an implicit subsidy to an industry that might not have grown without them — certainly not so big. But the payoff was historically unprecedented access to communications and content for consumers, as well as US dominance of a new internet industry sector.
Now we’re seeing a wave of revulsion against the big Internet companies — a “techlash” — that includes advocates on the left and right and that draws on a host of concerns: “fake news” and media manipulation, privacy violations, alleged partisanship in content curation, the political power of tech companies themselves, and their plain ol’ bigness.
Has the time come for the legal subsidy of CDA 230 to stop? Repealing or deeply undercutting Section 230 could probably curtail some wrongdoing online. It would most likely produce a stampede of litigation against tech platforms, which might respond, in part, by curtailing their openness to user content. One perverse result might be that the dominance of today’s players would be locked in. Small competitors couldn’t handle the potential legal liability. But in some distant future, maybe we would arrive through common law processes — or quasi-common-law iteration on statutory terms — at a set of rules for hosts and moderators of online content that is reasonable in every respect.
It is very difficult at scale to review all the writings, pictures, videos, and links that millions or billions of users post. Stalkers, trolls, and other social maladaptives are incredibly wily and motivated, so a forgiving rule of liability for platforms seems best. If content is self-evidently wrongful or illegal — say, child porn that has already been algorithmically identified — legal responsibility for taking it down may lie with platforms. But if it takes interpretation or adjudication, responsibility for moderation could easily swamp a platform in potential liability.
I’m inclined to believe that common law doctrines insulating wire services and other information conduits in decades past could and should have been extended to online platforms organically over time. CDA 230 preempted with a smartly deduced rule what may have been hammered out more firmly by an inductive process: lawsuits where liability rules and the “reasonableness” of given actions or inactions are considered in real cases.
In a way, the discussion was a comparison between two governmental institutions that could be the sources of our laws: common law courts or legislatures. Familiarity breeds contempt, and I don’t trust Congress in this overheated political environment to actually pass the carefully balanced rule that expert legal minds could come up with. A legislative rule like CDA section 230 will always be “in play” in Washington, DC, with coteries of lobbyists on either side jockeying to take from one another or protect what they’ve got. The litigation process is in need of reform, but I believe it can be reformed where legislative and regulatory processes cannot. Neither one is terribly attractive.
So. Should CDA 230 be reformed? Mmaaaaybee. And maybe not.
A “techlash” against major internet companies has prompted an reexamination of the protections they receive against Section 230 of the Communications Decency Act, but it is doubtful whether Congress can come up with reforms that improve on the status quo.
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