OAKLAND, Calif. – Twenty-six words inserted in a 1996 telecommunications bill helped companies like Alphabet’s Facebook, Twitter and Google to become the giants they are today.
These are the words that President Donald Trump challenged on Thursday in an executive order, an executive order that would remove those protections if online platforms indulged in “editorial decisions” – including, in the president’s opinion, the added a fact check warning to one of Trump’s tweets.
Under US law, Internet companies are generally exempt from liability for material that users post to their networks. Section 230 of the Communications Decency Act 1996 – itself part of a larger telecommunications law – provides a legal “safe harbor” for Internet businesses.
But Trump and other politicians say Twitter, Facebook and other social media platforms have abused this protection and should lose their immunity – or at least have to earn it by meeting requirements set by the government.
Section 230 probably cannot be easily disassembled. But if it did, the internet as we know it might cease to exist.
What exactly is section 230?
If a news site falsely calls you a scammer, you can sue the publisher for libel. But if someone posts this on Facebook, you can’t sue the company – just the person who posted it.
This is thanks to Section 230, which states that “no provider or user of an interactive IT service should be treated as the publisher or speaker of any information provided by another information content provider. ”
This legal phrase prevents companies that can host billions of messages from being sued into oblivion by anyone who feels wronged by something someone else has posted – whether their complaint is legitimate or not.
Section 230 also allows social platforms to moderate their services by removing posts that, for example, are obscene or violate the services’ own standards, provided they act in “good faith”.
Where does section 230 come from?
The history of the measure dates back to the 1950s, when bookstore owners were held responsible for the sale of books containing “obscenity”, which is not protected by the First Amendment. A case eventually went to the Supreme Court, which ruled that it created a “chilling effect” to hold someone accountable for someone else’s content.
This meant that plaintiffs had to prove that bookstore owners knew they were selling obscene books, said Jeff Kosseff, author of “The Twenty-Six Words That Created the Internet,” a book on Section 230.
Fast forward a few decades until the commercial Internet took off with services such as CompuServe and Prodigy. Both offered online forums, but CompuServe chose not to moderate its sound, while Prodigy, in search of a family image, did.
CompuServe was sued for this and the case was dismissed. Prodigy, however, got into trouble. The judge in their case ruled that “they have editorial control – so you look more like a newspaper than a newsstand,” Kosseff said.
This did not appeal to politicians, who feared the outcome would discourage newly formed internet companies from moderating at all. And Section 230 was born.
“Today it protects both from liability for user posts as well as from liability for clams for moderation of content,” Kosseff said.
What happens if section 230 is limited or disappears?
“I don’t think any of the social media companies would exist in their current form without Section 230,” Kosseff said. “They based their business models on being great user content platforms.”
There are two possible outcomes. Platforms could become more cautious, as Craigslist did after a sex trafficking law passed in 2018 that provided an exception to Section 230 for material that “promotes or facilitates prostitution.” Craigslist quickly removed its “personals” section, which was not intended to facilitate sex work. But the company did not want to take any risks.
This result could in fact harm none other than the president himself, who regularly attacks private figures, entertains conspiracy theories and accuses others of crimes.
“If the platforms were not immune from the law, they would not risk the legal liability that could arise from harboring the lies, defamation and threats of Donald Trump,” said Kate Ruane, advisor main legislative body of the American Civil Liberties Union.
Another possibility: Facebook FB,
, Twitter TWTR,
and other platforms might ditch moderation altogether and let the lowest common denominator prevail.
Such unattended services could easily end up dominated by trolls, like 8chan, which is infamous for its graphic and extremist content, said Eric Goldman, professor of law at the University of Santa Clara. Canceling section 230 would be “an existential threat to the Internet,” he said.
But Goldman doesn’t see the White House order as that kind of Internet threat, claiming it’s “political theater” that will appeal to Trump supporters. “The president cannot override Congress,” he said.