Biden administration likely to review Section 230

Eufemia Didonato

Section 230 is a 25-year-old law that protects Internet companies from being held liable for what their users say online. Repealing the law is an extreme — and unlikely — option, but many lawmakers on both sides of the aisle have introduced bills and pushed for change to the legislation. […]

Section 230 is a 25-year-old law that protects Internet companies from being held liable for what their users say online. Repealing the law is an extreme — and unlikely — option, but many lawmakers on both sides of the aisle have introduced bills and pushed for change to the legislation.

“Both sides have really used Section 230 as a proxy for their anger at Big Tech,” said Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy and the author “The Twenty-Six Words That Created the Internet,” a book about Section 230.

Repealing the law would almost surely have immediate and broad effects on social media. Companies would be more wary of being sued, and might further restrict what is allowed to be posted online, lest they be held accountable for defamation or other legal issues. Or, some social media sites could go the other direction and try to maintain neutrality by allowing anything and everything online — which could make the Internet unwelcoming to many. Some experts think getting rid of the law would further entrench the major social media companies that have the resources to defend themselves against lawsuits.

Google, Twitter and other social media companies have warned against widespread changes to the law. A few, responding to the public pressure, have voiced support for measured reform, including Facebook. Chief executive Mark Zuckerberg told Congress during prepared testimony in October that he thought lawmakers should update the law.

“The debate about Section 230 shows that people of all political persuasions are unhappy with the status quo,” Zuckerberg said. “People want to know that companies are taking responsibility for combating harmful content — especially illegal activity — on their platforms.”

Several lawmakers introduced bills last year to reform the law, including a bipartisan proposal from Sens. Brian Schatz (D-Hawaii) and John Thune (R-S.D.) called the PACT Act that is aimed at requiring tech companies to be more transparent about their content moderation and would require them to remove posts and other activity within 24 hours that the courts determine is illegal.

Biden told the New York Times in January that Section 230 should be revoked because of misinformation running rampant online, but has since steered clear of the topic. The law probably won’t be a priority for the Biden administration, which has to focus on the economy and the coronavirus response right away. The incoming administration declined to comment on its plans for the law.

The fact that the parties have different visions of how to reform the legislation could be the biggest impediment to change. “Politically, Section 230 is a bit like Dr. Doolittle’s mythical pushmi-pullyu,” said Colin Crowell, the former Twitter vice president for global public policy and philanthropy. “Republicans want to go one way and Democrats the other, so [it’s] hard to see it moving until there is a consensus upon which direction to go.”

Section 230 is a piece of the Communications Decency Act of 1996, written long before Facebook, Twitter and YouTube came to dominate social corners of the web. Its intent was to encourage Internet companies to at least try to moderate content on their sites by exempting them from civil liability for what users post online.

That way, the theory went, they wouldn’t be encouraged to take an entirely hands-off approach to avoid legislation and just end up allowing everything, including possibly offensive or illegal material.

The law ensures that tech companies are not considered the publisher, but rather a host, of what users post online. That encompasses everything from Facebook status updates, to tweets, to comments on a newspaper’s website to reviews of a blouse on a retailer’s page. It means Facebook can’t be held responsible for someone defaming their dentist on their timeline.

It also gives Internet companies the ability to broadly moderate content however they see fit.

This is the piece of Section 230 that Trump seemed to grasp onto with his calls to repeal, suggesting that getting rid of the law would push tech companies to have less power over what they take down online.

Trump’s rancor against the law reached a boiling point in late spring of 2020, when Twitter and Facebook began labeling his posts with fact checks and other notices when he broke their rules. He cried censorship, and fellow conservative Republicans picked up the call, resulting in failed attempts to repeal the law they viewed as enabling tech’s behavior.

In December, Trump’s familiar demand to lawmakers to repeal Section 230 came with a threat: He would veto a $741 billion annual defense spending bill if Congress refused to comply.

“Section 230, which is a liability shielding gift from the U.S. to ‘Big Tech’ (the only companies in America that have it — corporate welfare!), is a serious threat to our National Security & Election Integrity,” Trump tweeted at the time.

Lawmakers refused. He vetoed. And the Senate overturned his rejection, in the first override of one of his vetoes.

The same day Twitter banned Trump from its site permanently, Sen. Lindsey O. Graham (R-S.C.) called to “strip Section 230 protections from Big Tech.

“Big Tech are the only companies in America that virtually have absolute immunity from being sued for their actions, and it’s only because Congress gave them that protection,” he tweeted.

YouTube and Facebook also suspended Trump, although did not permanently ban him, over concerns that his posts could incite more violence after the Jan. 6 attack on the U.S. Capitol.

Broadly, Democrats have called for reform to the law to require tech companies to strengthen their monitoring of content on their sites, a move they hope would help cut down on dangerous disinformation on social media. Republicans who align with Trump have expressed the opposite view: They want tech companies to keep their hands off posts and stop what they consider the “censoring” of views.

“Even before the past few weeks, the issue was you had two very different types of people weighing in,” Kosseff said. “Conservative criticism is that there is too much moderation and bias. And [Democrats] are saying companies are not moderating harmful content enough.”

Both of these actions have huge potential consequences, said Daphne Keller, the platform regulation director at the Stanford Cyber Policy Center.

“Taking down more means that some valuable but controversial speech will be silenced, but leaving everything up means you just have a cesspool on your hands,” she said.

Keller urged a thoughtful and thorough practice to reform the law. Some revisions are lower-hanging fruit — such as requiring Internet companies to remove material that a court has determined to be defamatory, she suggested.

Open-Internet advocates, on the other hand, have fiercely opposed a repeal of Section 230 because they say it would have a chilling effect on freedom of speech online if companies are continually incentivized to remove controversial posts or risk being sued.

But repealing the law could have the opposite effect, experts say, because it could open the companies up to more lawsuits and therefore they could be incentivized to take down more material to avoid legal battles and fees.

If the companies really were disinclined to take any action, the Internet could quickly become overrun with objectionable posts, said Danielle Citron, a professor at the University of Virginia Law School.

“No one would use that Internet,” she said. “It would be overrun by Nazis and spam.”

Elizabeth Dwoskin and Tony Romm contributed to this report.

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