Is the Bipartisan Consensus on Section 230 a Mirage?

Congress is no stranger to year-ending budget battles. Nearly every year ends with a financial fight on Capitol Hill, often one involving a group of politicians demanding policy concessions in return for votes on the next year’s budget.

This timeless tale has played out differently in 2021 as outgoing President Donald Trump threatened to veto the National Defense Authorization Act unless “the very dangerous & unfair Section 230 is not completely terminated.” Trump tweeted this unconventional demand on Dec. 1, calling the controversial section of the Communications Decency Act “a liability shielding gift from the U.S. to ‘Big Tech’” and “a serious threat to our National Security & Election Integrity.”

In a surprising point of unity between the two contenders in last year’s election, newly inaugurated President Joe Biden agrees with Trump on Section 230. In an interview with the New York Times, then-candidate Biden said that the statute “immediately should be revoked.”

University of Baltimore School of Law professor Eric B. Easton, founding editor of the Journal of Media Law and Ethics, thinks that there’s no chance of Section 230’s outright repeal despite the strong statements from Trump and Biden.

“My fairly confident prediction is ‘that ain’t gonna happen,’” Easton said. “It’s already not happened in the House, and I don’t think it’s gonna happen in the Senate either, so the outright repeal of Section 230 is probably not in the cards. … What reasonable people would like to do with Section 230 is reform it. It has long, long since outraced its history.”

What is Section 230? United States Naval Academy law professor Jeff Kosseff called it “the twenty-six words that created the internet” in a book by the same name describing Section 230(c)(1). The famous — or infamous — section reads thus: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” That simple language means, in effect, that websites like Twitter or Google are not legally responsible for the content posted to their platforms. In 1996, legislators passed the Communications Decency Act in part out of a desire to protect fledgling tech companies from inclusion in potentially costly lawsuits aimed at users who post libelous or otherwise harmful material on their platforms. In 2020, as internet giant Facebook reports having 2.74 billion monthly active users — more than a third of the world’s population — those original justifications often seem antiquated.

Unlike the legislators who passed the Communications Decency Act just 24 years ago, congressional Republicans and Democrats today share an animus for Section 230. Jess Miers, a Legal Policy Specialist at Google and J.D. candidate at Santa Clara Law School, tracks federal legislation aimed at reforming or repealing Section 230. According to her data, there have been at least 20 proposed regulations in the past two years. All these efforts to alter Section 230 appear to reveal an area of law in which a compromise-challenged Congress could possibly reach common ground. But is this apparent consensus really just an illusion?

Derek Bambauer is a law professor at the University of Arizona and a former principal systems engineer at IBM affiliate Lotus Development Corp. He believes that despite the agreement that Section 230 has flaws, the left and right have drawn drastically different conclusions on what exactly should be changed.

“There’s a sort of unusual political convergence on Section 230 between what I think of as the sort of standard American political spectrum between the political right and the political left, although for different reasons,” Bambauer said. “The left of the political spectrum is suspicious about the size of tech companies, so they have a sort of more classic view of antitrust economics.”

According to Bambauer, Democrats are also concerned with the prevalence of nonconsensual pornography, hate speech and sex trafficking online. On the other hand, Bambauer contends that Republicans are unhappy with content moderation decisions based on what conservatives feel are ideological lines. (Content moderation at most major platforms is often guided by complex algorithms that systematically select the order in which online material is viewed by users.) They believe that “platforms are engaged in essentially viewpoint discrimination,” that companies like Facebook and Twitter favor left-leaning over right-leaning content in the moderation process.

“Everyone is unhappy with Section 230, and everybody is unhappy with tech companies,” Bambauer said. “The hard part is just there’s very little agreement on what to do about that.”

Easton believes that “a fairly modest revision of Section 230 would go a long way towards minimizing that problem [harmful speech on the internet] without seriously encumbering the amount of speech that’s out there.” Bambauer disagrees about the impact of modifying Section 230, predicting that in the short term there would be “a lot of uproar” but that in the long run platforms would ultimately function much as they do today. Bambauer anticipates that without Section 230, courts would rule online platforms would still be protected when they moderate content “because they are, in effect, engaged in their own speech function.” Absent the safe harbor currently provided by Section 230, platforms would be protected on constitutional rather than statutory grounds. Miers echoes this sentiment, calling Section 230 a “procedural fast lane” for First Amendment cases regarding speech online.

“All [Section 230] does is help defendants reach the same result that they would reach under the First Amendment or under some other tort defense,” Miers said. “It helps them reach the inevitable quicker at a ‘motion to dismiss’ phase in a court proceeding.”

Experts like Miers, Bambauer and Easton are quick to note how disconnected much of the political discourse around Section 230 is from the realities of the way the law actually functions. Miers criticizes opinion writer Rachel Bovard’s recent column in USA Today, saying that Bovard’s depiction of Section 230 as “bulletproof” is inaccurate, noting that Section 230(e) contains numerous exceptions, including those for federal criminal law and intellectual property law. Additionally, Bambauer said many politicians speak as if Section 230 requires “neutrality or non-intervention” on the part of platforms in order to receive the protections offered by the law, while the statue does not actually stipulate those conditions.

Another common misconception is the belief that web platforms and traditional media publishing houses constitute different legal categories. Miers notes that the distinction between “publishers” and “platforms” is a false one.

“The websites have a First Amendment editorial discretion to remove content they don’t want on their services,” Miers said. “It’s the same exact type of editorial discretion that newspapers have.”

Beyond the many legal and constitutional concerns, there are potential economic downsides to altering Section 230. Bambauer and Miers both noted the potential threat that repealing the statute would have on newer tech companies looking to break into the market. Any changes resulting in an uptick in litigation against tech companies could disproportionately impact smaller companies, while established platforms would have the financial capability to fight those legal battles.

“If there’s the risk, right, of having to work through some litigation in order to have a new speech platform, it just makes it more difficult for small companies, startups, to enter [the industry] just because lawyers are expensive, so Facebook can afford it,” Bambauer said. “I think this is one of the reasons that Facebook has been supportive of some Section 230 reforms.”

It seems unlikely that many of the proposed changes to Section 230 will advance any closer to the Resolute Desk during the 117th Congress. Miers is skeptical of most of these bills’ prospects, but thinks that two proposals stand a better chance to become law on account of their bipartisan support. One of these bills is the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act. Introduced by Senator Lindsey Graham (R-South Carolina) in March and co-sponsored by a dozen senators including Dianne Feinstein (D-California) and Josh Hawley (R-Missouri), Miers said the EARN IT Act “would require websites to follow specific efforts in order to combat or prevent, mitigate against CSAM [Child Sexual Abuse Material]. If they don’t then they would lose 230 entirely.”

The other proposal that Miers identified as having popularity on both sides of the aisle is the Platform Accountability and Consumer Transparency (PACT) Act, a bill introduced in June by Senators Brian Schatz (D-Hawaii) and John Thune (R-South Dakota) that would compel internet platforms to be more transparent about their content moderation practices. Ultimately, legislators may be forced to determine if any potential changes to Section 230 could ever truly transform the workings of modern internet platforms.

“I think it’s important that regulators understand if there’s a problem a problem that they want to solve, they really need to ask, ‘Will amending or repealing Section 230 really actually solve that problem?’” Miers said. “Because 99% of the time it probably won’t.”