The History to the “Section 230”/Government Restriction of Speech on the Internet Debate

The last couple of years have brought new awareness of what before would have been considered a fairly obscure part of federal law, something referred to as “section 230.” Section 230 was conceived as a statutory means for owners to properly maximize their investments, property and abilities while also providing an incentive for good actors.

As implied by its reference, section 230 was part of a broader piece of legislation – the Communications Decency Act of 1996 (CDA). The CDA was the first significant attempt by Congress to regulate indecency and obscenity in cyberspace. Though it passed and was made law, the votes were largely political as it seemed on its face to be drafted in such a way that violated the first amendment of the Constitution. Unsurprisingly, about a year later in Reno v. ACLU the CDA’s anti-indecency portions were struck down but section 230 survived the challenge.

Section 230 created a “safe harbor” to encourage owners to provide some level of policing to fight against crimes of all sorts but not least was child pornography and content piracy. Contrary to the populist rhetoric, the section was not a “special carve-out” for edge service providers that did not even exist then. Nor was it some broad shield from all liability as some disingenuous spin masters would like others to believe. And the assertion that the section was part of an “industrial policy” that was approved by a dominantly free market congress in 1996 stretches credulity.

At the time, efforts by bulletin board software platforms, then a popular form of online communications, to eliminate, restrict or edit content submitted by users were being challenged. The bulletin board services were facing an increased risk of liability when they tried to clean up their sites instead of just surrendering control and completely declining to review or edit third party content at all. The common law had resulted in a perverse incentive – abandon any attempt to clean up an online platform rather than face liability or impose complete publisher control thereby restricting the online world to only the publisher’s voice. The voice of the online citizen was being threatened.

In fact, the safe harbor language is simple and straightforward, “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” With this language online providers, websites, bulletin boards, internet service providers and other platforms, were now free to police their sites as they would like, often cleaning up their sites to attract a broader audience. The language did provide incentive and protect good Samaritans who, in the context of the original Act, were removing “obscenity” in good faith. Sites that sought greater legitimacy set about cleaning up the pornography and eliminating threats of violence.

In sum, all Section 230 does is make the speaker liable for their statements, not the platform on which the statements are made — just as the shopping mall nor restaurant are liable, not the town hall nor the state capitol. This idea comes straight from laws already governing the analog world. The notion that a person must have knowledge and control over a situation to be liable is well established throughout existing law.

Section 230 enshrines our offline “Good Samaritan” rule extending it to platforms.  In the offline world, rendering aid to someone who is hurt does not make a person liable for any unintentional damage caused while rendering assistance. That is, the liability for user generated content still accrues to the user. Now if platforms moderate the content on their site to remove objectionable content, they are not liable.

But why was the debate and decision over section 230 consequential? The time had come for people to decide what they believed. Should they regulate the internet via government, tame it in a way that politicians found pleasing, or allow the chaos of creativity and innovation, and to some extent, yes, the uglier side of the citizen’s voice to continue. Policy makers had to choose whether personal accountability was better than trial lawyer liability, and whether encouraging good faith was better than forcing compliance with one size fits no one regulations.

The truth is that Section 230 is not a “special deal for tech” but simply the transfer of analog laws to an online world. Once again policy makers will need to choose whether they favor growing government with rules that apply online but not on main street, or whether personal responsibility, innovation and, yes, a little chaos will once again be the choice. For limited government, free marketeers the choice should be obvious.