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Title: Section 230 of the Communications Decency Act: What is it and Why does Nobody Like it?

By Scout Burchill

October 28, 2020

 

Summary:

Over the past few months, Section 230 of the Communications Decency Act, which was passed into law in 1996, has become ensnared in controversy from both sides of the political spectrum. Despite being a small part of a much larger bill, Section 230 establishes two important precedents that are being challenged today.

Firstly, Section 230 establishes that “internet computer services” are platforms and not publishers. This shields social media companies and websites from legal liability for almost all content posted by users. There are some exceptions which include copyright violations, child pornography and sex work-related content. Secondly, Section 230 also bestows platforms with “Good Samaritan” legal protections in blocking “offensive content.” This provision provides the legal underpinning for social media companies to moderate content.

Section 230 has become a special object of ire for President Trump and his ongoing feud with social media companies’ content moderation attempts. He has frequently tweeted that he wants to repeal Section 230 (often in all caps and followed by three exclamation marks) in response to Twitter’s attempts to fact check, flag and delete his tweets. His vexations are shared by many on the right who feel as though social media companies are biased against right wing speech.

The Trump administration is not alone in hoping to challenge social media companies over Section 230. Former Vice President and current Democratic presidential nominee Joe Biden has echoed Trump’s calls to repeal Section 230, albeit for very different reasons. During the Democratic primary he told the New York Times’ editorial board that Section 230 “immediately should be revoked.” He added that sites like Facebook should be held liable for the content posted and shared on their platforms because they are “propagating falsehoods that they know to be false.”

As the election nears and social media companies have been ramping up their efforts to clamp down on misinformation and political content, the government has been stepping up its own efforts to challenge Section 230. On September 23rd, at the behest of President Trump, the Justice Department introduced draft legislation to reform Section 230. Not too long after, on October 13th Supreme Court Justice Clarence Thomas wrote in a decision not to reconsider an appellate court’s ruling involving Section 230 that he is in fact open to hearing a case that would define Section 230 in a narrower sense. In inviting a more “appropriate case” to consider, he argued that the court should consider whether, “the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” Two days later, on October 15th Ajit Pai, Chairman of the Communications Commision, citing “serious concerns” raised by all branches of government, declared that, “the FCC has the legal authority to interpret Section 230.” Although the legal justification for this act is questionable and it remains uncertain what exactly the FCC intends to do, it is clear that the tides are turning against big tech and social media platforms and Section 230 is at the forefront of this debate.

Analysis:

Section 230 is under attack from both sides of the political aisle, but for opposing reasons, and as a result, the battle over Section 230 has come to be reflective of many of the trends in the culture wars at large.

Many on the right express the viewpoint that social media platforms are biased against them and actively try to censor or suppress their speech. While some anecdotal evidence may support this, the data just does not bear this out. A simple cursory scan of the top ten daily Facebook news stories contradicts this point nearly everyday. Overwhelmingly the top ten list is composed of right wing media outlets and figures such as Fox News, Ben Shapiro, Don Bongino and Breitbart to name a few (you can check this list yourself at https://twitter.com/FacebooksTop10). If social media companies are actively trying to suppress right wing political speech, they are doing a pretty terrible job at it. This overall perception on the right of a perceived bias is reflected in the Justice Department’s suggested legislative changes, which aim to make platforms significantly more liable for content removals.

On the left, many express a similar view to that of Joe Biden in demanding that social media companies moderate their content even more and be held more accountable for the information shared on them. This sentiment has been growing on the left since the election of Donald Trump in 2016, and is largely due to the idea that social media played a decisive role in Trump’s massive upset over Hillary Clinton.

This view is particularly pernicious for a number of reasons, both ideologically and technically. For one, given the size of these companies, it is simply not possible for them to effectively and consistently moderate content in the ways that are being asked of them. The scale of these companies is difficult to wrap one’s head around. When employees at Facebook look at their dashboards to monitor activity, they are seeing numbers denominated in the millions and even billions. The sheer magnitude of the numbers behind any social phenomenon are daunting. Moderating content by removing pornographic images or videos of extremist terrorism is one thing, but asking these companies to be the arbiters of truth and acceptability is an entirely different demand. Furthermore, it totally misses the point that this type of moderation is just not feasible on a consistent basis. We are already seeing this in the types of overreaches and mistakes that tech and social media companies have routinely been making. These overreaches inevitably affect the left just as much as the right. Just last week Facebook blocked a video by Jacobin, an established voice of the American left, that covered topics such as Bolivia, Bernie Sanders and the Jeffrey Toobin incident. Even Zoom decided to take action against the Palestinian activist and former terrorist Leila Khaled by blocking a webinar event sponsored by San Francisco State University where she was scheduled to speak on issues of gender, justice and resistance.

The current debate over Section 230 reflects the increasingly partisan divide on issues of free speech principles. Newly released research by the Pew Center shows that in 2017, people, regardless of their political affiliation, tended to hold similar views on the balance between free speech and feeling safe online. However, between 2017 and 2020, changes in views seem to track with partisan divides. In 2020, 60% of Democrats hold the view that it is more important for people to feel welcome and safe online than for people to be able to speak their minds freely. On this point only 45% of Republicans agree. Conversely, only 38% of Democrats compared to 54% of Republicans hold the view that being able to speak one’s mind freely online is more important than feeling welcome and safe.

For now, the battle over Section 230 resembles mere political jousting as both sides attempt to tip the scales of the power of social media platforms in their direction. Unfortunately, this obscures the larger problem of the unprecedented power that social media and tech platforms hold in shaping political discourse and imposing standards of acceptability. Rather than repealing or revoking Section 230, there may be a way forward in the example of the antitrust case that the Department of Justice is bringing against Google. Over the past decade, Google and Facebook have come to dominate the entire news business, having incredible power over revenues, advertising and information flows. The amount of power they wield can determine whether or not a media outlet is successful and what types of information a user is exposed to. Rather than forcing them to commit to the ideologically and technologically fraught job of responsibly wielding that power, a workable solution might be found in breaking them up and reigning in their power. This strategy would pull the focus away from the increasingly divided conversations of censorship and freedom of speech and would bring to the fore the proud and well-established American tradition of breaking up monopoly powers to ensure fair and healthy competition in the marketplace of commerce and ideas.

Resistance Resources:

Internet Governance Project : https://www.internetgovernance.org/2020/10/18/the-assault-on-platforms-and-section-230/

DOJ Proposed Section 230 Legislative Changes:

https://www.justice.gov/opa/pr/justice-department-unveils-proposed-section-230-legislation

https://www.justice.gov/file/1319331/download

DOJ’s June Recommendations for Reforming Section 230: https://www.justice.gov/file/1286331/download?utm_medium=email&utm_source=govdelivery

Justice Clarence Thomas’ Writings on Section 230:

https://www.supremecourt.gov/orders/courtorders/101320zor_8m58.pdf

FCC’s Chairman Ajit Pai’s Statement on Section 230

https://www.fcc.gov/document/chairman-pai-statement-section-230

Pew Research on Partisan Divide Concerning Offensive Content Online:

https://www.pewresearch.org/fact-tank/2020/10/08/partisans-in-the-u-s-increasingly-divided-on-whether-offensive-content-online-is-taken-seriously-enough/

An Informative Thread Presenting Different Ideas for Revising Section 230:

https://twitter.com/ShiraOvide/status/1321447916867903496

Electronic Frontier Foundation – Leading Nonprofit Defending Civil Liberties in the Digital World:

https://www.eff.org

https://www.eff.org/deeplinks/2020/10/content-moderation-and-us-election-what-ask-what-demand

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