There are few laws more fundamental to how the Internet works than Section 230. At just 26 words, it framed much of the modern Web. But now the Supreme Court has picked up two cases that challenge its fundamental premise: Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh. If you want to know what all the fuss is about, here’s what the law says and what people think about it.
What is Section 230?
Section 230 of the Communications Decency Act was originally passed in 1996. That was before Google, Facebook, Amazon or many of today’s internet giants were founded. Instead, it was designed to deal with an internet full of message boards and rudimentary search engines.
Section 230 contains two important provisions: (c)(1), which states: “No provider or user of an interactive computer service shall be treated as a publisher or speaker of information provided by another information content provider;” and ( c)(2), which provides protection from liability for “voluntary good faith measures to restrict access to or availability of” objectionable content, whether or not that content is constitutionally protected under the First Amendment.
In general, US courts have taken a broad approach in interpreting Section 230. They’ve largely ruled that search engines, major social media services, ecommerce sites, and even small blogs that host comment sections aren’t liable for the content that users post – although there are exceptions for things like illegal content and content, that violate intellectual property laws. The courts have also ruled that platforms have broad rights to remove content they like, and so former President Donald Trump was banned.
This law has had very important implications for how websites have been able to operate for the last 26 years. Sophia Cope, a senior counsel for the Electronic Frontier Foundation, explains that “Section 230 is viewed as providing both immunity from action and liability.” (The EFF has filed amicus briefs in support of Section 230 in two recent Supreme Court cases and has long argued that it is an essential piece of legislation protecting the right to free speech online.)
The law means that websites and social networks are not only exempt from potential civil settlements for damages suffered by a plaintiff as a result of user-generated content hosted by those platforms, but they can also opt out of any legal proceeding early without having to defend themselves against it the details of the claim.
As Cope explains, without Section 230, platforms “would have to defend themselves to the end of a case that could take several years … and then there could be multiple appeals that cost a lot of money and take a lot of time.”
Why do tech companies like Section 230?
Section 230 is often referred to as “liability protection,” and that’s really why tech companies like it.
In other countries around the world, tech companies have far stricter content removal obligations than the US currently has. In Germany, for example, social media companies must remove unlawful content (which can include criminal offenses such as insulting a public office) immediately or face a fine of up to 50 million euros.
And not only are they forced to pay fines, they are forced to hire lawyers and lobbyists to argue against the cases and the laws in the first place. That’s why they’ve fought so hard against the recent spate of European Union legislation like the Digital Services Act and the Digital Markets Act, which are specifically designed to restrict American tech companies.
How do politicians feel about Section 230?
As much as tech companies enjoy the protections of Section 230, politicians across the political spectrum object to it.
As Cope explains, Republican politicians in recent years have tended to feel that “Section 230 platforms are removing too much content — especially too much Conservative or Republican content.” Ex-President Trump, for example, called for its abolition.
“But on the other hand,” Cope says, “you have the Democrats, or rather the liberals, who actually think there isn’t enough content being removed. They complain about a lot of bad content, like hate speech, which is protected by our First Amendment.”
in one Wall Street Journal Last month, in a guest post, President Joe Biden called for “bipartisan action by Congress to hold big tech accountable,” including amending Section 230 to make companies more liable for the content they host.
What else is there to know about Section 230?
For better or worse, changes could be on the horizon. “It seems like there’s consensus in Congress that after 25 years of Section 230, they want to do something,” Cope says, “but it’s not 100% clear what they would do.”
But first the Supreme Court has to deal with it. Both Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh are being sued under the federal Counter-Terrorism Act, and both are dependent on how the court interprets Section 230. When he reported the first of these cases yesterday, The New York Times said the court is reluctant to make major changes to the law.
It’s the first time the highest court has dealt with Section 230, and whatever it decides will have serious implications for the future of the internet around the world.