SUMMER READING: Section 230 and Internet Freedom

Lawmakers are excited to finally leave town and lay on the beach with their faces buried in an exciting (and hopefully non-political) book. But no matter how riveting that book is, there is the ever-present tendency to…check social media for any mentions of themselves or the latest sizzling hot takes. Social media platforms and the internet writ large can be a cesspool of clap backs, ad hominem attacks, and overall nastiness. But overall, the digital domain allows for open-ended discourse and has powered a free, vibrant civil society for the past two decades. Some lawmakers want to ignore the big picture and punish digital platforms for ostensibly engaging in “censorship.” One particular area of focus for these members of Congress is Section 230 of the 1996 Communications Decency Act, which offers broad-based liability protections for internet platforms.

NetChoice Vice President and General Counsel Carl Szabo explains the scope of the law and the novel protections it offers: “Section 230 guarantees that services that host are not liable for content posted by others, bar some exemptions. Section 230 also enables platforms to remove or otherwise moderate objectionable content without assuming liability…Section 230 isn’t a government handout to Big Tech. Instead it simply codified over seventy years of Court Doctrine — doctrine that has benefited various industries across the country rather than just tech…Conduit immunity is where content creators — not distributors — are held liable for lawbreaking content. Traditionally the U.S. has preferred to hold the creators of lawbreaking content liable, rather than those who happen to distribute it.” The reasoning here is simple and straightforward. Were the federal government to hold these content distributors liable, it would become far more difficult for innovative digital platforms (and a host of other business models) to maintain profitability.

The end result of this would be more “censorship,” not less. In an environment where, say, TripAdvisor could be sued for a comment containing damaging misinformation, the company would go into hyper-vigilance mode and proactively delete posts that pose even an iota of risk. As FreedomWorks Regulatory Policy Manager Daniel Savickas notes, “Section 230 in actuality prevents these tech giants from having to be the arbiters of every single thing that happens on the site. This is why it is so ironic that so many self-proclaimed conservatives see repealing Section 230 protections for social media giants as a means to stop censorship. Doing so would actually broaden the scope of censorship. These giants, or even smaller companies hoping to compete with the giants, could not afford to monitor every post, every comment, or every reaction to ensure they’re not in legal jeopardy. They would be forced to shut down anything and everything that even approaches being controversial.” That’s right: in the post-Section 230 race to censor everything and anything, the largest and wealthiest tech platforms would win out. Smaller websites and platforms simply wouldn’t be able to keep up with the avalanche of liability and required risk aversion.

These arguments, however, have not stopped luddite lawmakers such as Sens. Josh Hawley (R-Mo.) and Lindsey Graham (R-S.C.) from proposing legislation that would roll back Section 230 liability protections. Sen. Hawley’s “Limiting Section 230 Immunity to Good Samaritans Act” would tie these critical protections to tech platforms promising to operate in good faith in their terms of service. Companies could be sued for thousands of dollars for violating these vague contractual obligations.

Sen. Graham’s “EARN IT Act” isn’t much better. According to the latest version of the EARN IT Act (passed by the Senate Judiciary Committee), states can condition liability protections on tech companies ending encryption privacy protections for users. Free Press Action Senior Policy Counsel Gaurav Laroia notes, “the amended EARN IT Act leaves so much discretion to states to create new laws in this area, those state-level liability standards could be wildly inconsistent, and the bill incentivizes revisions to those statutes. Those lower standards in civil law and in the states could lead to the shuttering of all sorts of forums and tools that teenagers and young adults use to connect and communicate because companies are fearful of exposing themselves to an avalanche of state suits.”

Instead of undermining Section 230, lawmakers should celebrate the role of these long-standing liability protections in creating a free, vibrant marketplace of ideas. So, lawmakers, feel free to check your newsfeed and go back to that paperback thriller.