President Donald Trump has reinvigorated his campaign against Section 230, saying that it should be revoked for national security reasons – a process that could fundamentally change how the internet works.
In May, the president signed an executive order which would limit the protections social media companies such as Twitter, Facebook, and search giant Google has over content on its platforms.
Recently, the president has said that he will veto a US defence bill if Congress does not include legislation in it that would strip social media companies of the protections Section 230 grants to them.
“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. Our Country can never be safe & secure if we allow it to stand” he tweeted, although the reasons for this belief remain unclear.
“Therefore, if the very dangerous & unfair Section 230 is not completely terminated as part of the National Defense Authorization Act (NDAA), I will be forced to unequivocally VETO the Bill when sent to the very beautiful Resolute desk”, the president continued.
What is Section 230?
The core purpose of Section 230 is to protect the owners of any “interactive computer service” from liability for anything posted by third parties. The idea was that such protection was necessary to encourage the emergence of new types of communications and services at the dawn of the Internet era.
Section 230 was enacted in 1996 as part of a law called the Communications Decency Act, which was primarily aimed at curbing online pornography. Most of that law was struck down by the courts as an unconstitutional infringement on free speech, but Section 230 remains.
In practice, the law shields any website or service that hosts content – like news outlets’ comment sections, video services like YouTube and social media services like Facebook and Twitter – from lawsuits over content posted by users.
When the law was written, site owners worried they could be sued if they exercised any control over what appeared on their sites, so the law includes a provision that says that, so long as sites act in “good faith,” they can remove content that is offensive or otherwise objectionable.
The statute does not protect copyright violations, or certain types of criminal acts. Users who post illegal content can themselves still be held liable in court.
The technology industry and others have long held that Section 230 is a crucial protection, though the statute has become increasingly controversial as the power of internet companies has grown.
What prompted the creation of Section 230?
In the early days of the Internet, there were several high-profile cases in which companies tried to suppress criticism by suing the owners of the platforms.
One famous case involved a lawsuit by Stratton Oakmont, the brokerage firm depicted in the Leonardo DiCaprio movie “The Wolf of Wall Street,” against the early online service Prodigy. The court found that Prodigy was liable for allegedly defamatory comments by a user because it was a publisher that moderated the content on the service.
The fledgling internet industry was worried that such liability would make a range of new services impossible. Congress ultimately agreed and included Section 230 in the Communications Decency Act.
What does Section 230 have to do with political bias?
President Trump and others who have attacked Section 230 say it has given big internet companies too much legal protection and allowed them to escape responsibility for their actions.
Some conservatives, including the president, have alleged that they are subject to online censorship on social media sites, a claim the companies have generally denied.
Section 230, which is often misinterpreted, does not require sites to be neutral. This is a view that many congresspeople including Republican Senator Ted Cruz have incorrectly stated as Section 230 becomes a partisan issue.
The law is becoming a partisan issue because of the belief from Republican lawmakers that social media companies take down content from right-wing voices more than left-wing or liberal ones. This statement is questionable. While Twitter CEO Jack Dorsey has said in the past that employees have a left-leaning bias, that does not affect how Twitter makes decisions on content on its platform.
Moreover, there is evidence to suggest that social media companies are in fact catering more to conservatives in order to avoid political bias; this includes a recent report that suggests Facebook shelved research at the behest of CEO Mark Zuckerberg to make the platform less politically polarising because of fears that right-wing voices behaving in spam-like behaviour would be targeted.
While these large companies have made errors and incorrectly taken action against right-wing voices, it is difficult to state that these multinational, multi-billion dollar companies have a definite instituional bias against conservative users.
Can President Trump order changes to Section 230?
No. Only Congress can change Section 230. In 2018, the law was modified to make it possible to prosecute platforms that were used by alleged sex traffickers. As the power of internet companies has grown, some in Congress have also advocated changes to hold companies responsible for the spread of content celebrating acts of terror, for example, or for some types of hate speech.
A draft of Trump’s May executive order instead calls for the Federal Communications Commission to “propose and clarify regulations” under Section 230. The order suggests companies should lose their protection over actions that are deceptive, discriminatory, opaque or inconsistent with their terms of service.
FCC commissioner Brendan Carr accused Twitter of “abandon[ing] any attempt at a good faith application of its rules” and making decisions “based on whether it approves or disapproves of their politics.”
Despite Trump not being able to order changes to the law by himself, the threat of continued action by the government against social media companies could be enough.
Jeffrey Westling, a technology and innovation policy fellow at research organisation R Street Institute, said that: “People are starting to realise is the executive order doesn’t need to be legally enforceable to still be a threat to these companies. The companies will likely win any challenge, but no one wants to go through litigation. It becomes a cost-benefit analysis of, ‘Is it worth it to put a fact check the next time the president puts a false tweet out there?’”
What is the view of the platforms?
Facebook CEO Mark Zuckerberg has said in the past that the company should be regulated “somewhere in between” a newspaper and a telecom company, but has also criticised Twitter’s actions against Mr Trump for being “arbiters of truth“.
Facebook has also been an “arbiter of truth” with regards to numerous subjects, such as coronavirus information that could cause physical harm and removed pages of conpiracy theorists such as David Icke, but has been criticised for not fact-checking deceptive adverts in the US or during the UK General Election in 2019.
When interviewed by Congress, Jack Dorsey said that eliminating Section 230 would stop the good-faith attempts companies take to police their platforms, forcing them to take a more hands-off approach.
“If we didn’t have that protection, we would not be able to do anything around harassment or to improve the safety or health of the conversation around the platform,” Dorsey said.
YouTube CEO Susan Wojcicki has said that if YouTube “were held liable for every single piece of content” that was hosted, or that its recommendation algorithm promoted, “we would have to review it. That would mean there’d be a much smaller set of information that people would be finding. Much, much smaller.”
Do other countries have an equivalent to Section 230?
The legal protections provided by Section 230 are unique to U.S. law, although the European Union and many other countries have some version of what are referred to as “safe harbor” laws that protect online platforms from liability if they move promptly when notified of illegal content.
The fact that the major internet companies are based in the United States also gives them protection.
Would revoking Section 230 benefit Mr Trump?
Despite Mr Trump tweeting that the legislation should be repealed, such a move could have negative effects on his own accounts. The Section 230 protection has stopped Twitter from taking action against the inflammatory content Mr Trump is prone to post, but the social media company may have to change that if it is legally responsible for what is published on its platform.
“Ironically, Donald Trump is a big beneficiary of Section 230,” said Kate Ruane, a senior legislative counsel for the American Civil Liberties Union. “If platforms were not immune under the law, then they would not risk the legal liability that could come with hosting Donald Trump’s lies, defamation and threats.”
Additional reporting by agencies