Back to the Future – Revisiting Section 230
Privacy Plus+
Privacy, Technology and Perspective
Back to the Future – Revisiting Section 230. This week, we consider an old law—Section 230 of the Communications Decency Act —now being targeted by a new executive order. Two separate arguments are happening over Section 230. Let’s pay attention to the real one.
One argument is the election-year political sturm und drang, over positioning and messaging. That’s the loud one.
The other one, we suggest, is the real argument: Has the world has changed so much since Section 230 was passed that at this point, it has now accomplished most of what it was created to do? Should Section 230 now be updated in order to reflect today’s vastly complex internet, instead of the embryonic one it was created 24 years ago to incubate? If so, how?
The Loud Argument
On June 28th, President Trump issued an executive order (“Order”), which is called “Preventing Online Censorship.” You can read the full text of the Order by clicking on the following link:
https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/
Updated link: https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-preventing-online-censorship/
The Order is aimed at online platforms, like “Twitter, Facebook, Instagram, and YouTube” that are presently immune from certain types of liability under section 230(c) of the Communications Decency Act (“CDA”). According to the Order, “Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike.” See Order at § 1.
The Order seeks these actions:
· Clarification by the FCC and the FTC of the scope of the liability protection for online platforms under Section 230 (See Order at §§ 2(b) and 4);
· Review and reporting on each executive branch agency’s Federal spending on advertising and marketing paid to online platforms (See id. at § 3); and
· Establishment of a working group to study State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices, and also develop model legislation for related State and Federal legislation (See id. at §§ 5 and 6).
What Section 230 Actually Says
The scope of liability protection for online platforms is specifically defined under Section 230(c). It establishes two (2) types of immunity — "publisher" immunity under Section 230(c)(1), and immunity to "police content" under Section 230(c)(2). The statute reads:
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker. 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.
(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
47 U.S.C. § 230(c).
Numerous courts have found that a web-based platform or service, like Facebook, with users who utilize the internet to gain access to their accounts, posts, and other content stored on that platform or service meets the definition of an interactive computer service under the CDA. See e.g. Klayman v. Zuckerberg, 910 F.Supp.2d 314, 316 (D.D.C. 2012); Sikhs for Justice, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1093 (N.D. Cal. 2015), aff'd 697 App’x 526 (9th Cir. 2017); see also 47 U.S.C. § 230(f)(2). "The majority of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) (internal citations and quotations omitted); accord Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Johnson v. Arden, 614 F.3d 785, 791 (8th Cir.2010); Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir.2008); Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418-19 (1st Cir.2007); Batzel v. Smith, 333 F.3d 1018, 1026-30 (9th Cir. 2003); Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir.2003); Ben Ezra, Weinstein, & Co., Inc. v. AOL, 206 F.3d 980, 984-85 (10th Cir.2000); Zeran v. AOL, 129 F.3d 327, 328 (4th Cir.1997).
By its terms, Section 230(c) "precludes courts from entertaining claims that would place a computer service provider in a publisher's role," and therefore bars "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone, or alter content." Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir.1997); see also, e.g., Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F.3d 980, 986 (10th Cir.2000) ("Congress clearly enacted § 230 to forbid the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions."). Further, the statute is preemptive of State law that would seek to prohibit online platforms from engaging in unfair or deceptive acts or practices are preempted under Section 230. See 47 U.S.C. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.").
The Real Argument
Passed as part of the massive reforms of the Telecommunications Act of 1996, Section 230 allowed embryonic internet platforms (like AOL) to grow as “bulletin boards” without liability for the nutty, lewd, defamatory, or criminal stuff people might post on them, policing the content or not as the platforms chose; and the immunities were made preemptive so that states could not override them. (For an important perspective on how long ago this was, the ’96 Act is what allowed Southwestern Bell and the other Regional Bell Operating Companies to begin offering long-distance phone service and long-distance carriers like AT&T to enter local markets. At the time, Mark Zuckerburg was in junior high school.)
Section 230 was wildly successful in sheltering the platforms, to the point that the language of Section 230 has been described as “the twenty-six words that created the internet.” Accordingly, a co-author of Section 230, Senator Ron Wyden, issued the following statement, condemning the White House’s “attempt to re-write Section 230”:
But today, perhaps we should all ask whether Facebook, Twitter and other online platform still need all of the sweeping protections of Section 230? To the extent that these platforms now serve to guide conversations, encourage various behaviors and amplify others, might they now be asked to comport themselves like, say, newspapers do, at least to a reasonable extent? To the extent that at least some of these platforms profit by processing personal information for the purpose of placing online advertising targeted to certain consumers and not others, aren’t they acting as more than just passive bulletin boards? And finally, to the extent that these platforms are now known to be populated with malicious actors, including nation-states who are intent on interfering in elections, is the public interest truly served by the continued blanket immunities accorded by Section 230? These are big questions.
Regardless, we doubt the Order will have much effect, because Section 230 is part of a statute, and any fundamental change to that law is a legislative function that will have to come from Congress.
So, the real argument – the one that matters – is how much immunity, and from what, mature platforms should have in the 21st century.
---
Hosch & Morris, PLLC is a Dallas-based boutique law firm dedicated to data protection, privacy, the Internet and technology. Open the Future℠.