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Lots of talk about Section 230, which of course I'm here for, as I spent more than two years writing a book about 230. https://amzn.to/3ey5pJi It's a short law but the history is not necessarily intuitive. So here's a thread that gives an overview of how/why it is on the books.
Beginning in the 1950s, courts developed a common law/First Amendment rule that distributors (i.e., bookstores) could only be liable for the content they distribute (i.e. books) if they know or have reason to know of the defamatory or illegal content.
As the Supreme Court wrote in 1959: "if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected . . .
and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature"
So the courts were concerned that imposing liability on intermediaries would not only penalize illegal speech, but would also chill legal speech. This rule was pretty straightforward until the early 1990s, when online services distributed vast amounts of 3d-party content.
CompuServe got a defamation case dismissed because a judge concluded that it was a distributor just like a bookstore, and it had no knowledge or reason to know of the alleged defamation. https://scholar.google.com/scholar_case?case=17861104566192106776&q=cubby+v.+compuserve&hl=en&as_sdt=6,47 The judge wrote:
"CS has no more editorial control over such a publication than does a public library,bookstore,or newsstand, and it would be no more feasible for CS to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so."
In another defamation suit, its main competitor, Prodigy, failed to convince a judge that it also should be held to the same standards as a distributor. The reason? Prodigy had moderators who blocked certain content. https://h2o.law.harvard.edu/cases/4540
"Prodigy's conscious choice, to gain the benefits of editorial control, has opened it up to a greater liability than CompuServe and other computer networks that make no such choice."
This ruling, in 1995, got a lot of attention, particularly because the media was hyping the problem of children connecting to the newfangled Internet and accessing "cyberporn." http://content.time.com/time/covers/0,16641,19950703,00.html
At the time, Congress was overhauling its telecom laws for the first time in 60 years. The Senate's telecom act included the Communications Decency Act, which imposed criminal penalties for the transmission of indecent content.
The House (including Speaker Gingrich) hated the CDA and thought it was unconstitutional. They widely supported the Internet Freedom and Family Empowerment Act, introduced by Reps Chris Cox and @RonWyden. This is what would become Section 230.
Rather than impose criminal penalties, 230 had two main provisions. First, the 26 words: "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." This is "(c)(1)"
230 also blocks civil liability for "good faith" actions "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" This is (c)(2). (Interestingly, (c)(1) and (c)(2) were in one paragraph but later broken out into two sections).
Based on the statements of Cox and Wyden, and the statements of House members in Aug. 1995 when the House almost unanimously added 230 to its telecom bill, there were two main goals:
First, the members wanted to encourage platforms to do their own moderation and allow parents to use tools like NetNanny to block content that harms children. They saw the Prodigy opinion as a disincentive to moderation.
“We want to encourage people like Prodigy, like CompuServe, like America Online, . . . to do everything possible for us, the customer, to help us control, at the portals of our computer, at the front door of our house, what comes in and what our children see,” Cox said.
Bob Goodlatte said that the current legal system creates “a tremendous disincentive for online service providers to create family friendly services by detecting and removing objectionable content.”
Second, the members wanted to create this family-friendly environment online without using litigation or, more importantly, government regulation.
Rep. Joe Barton said that the Cox-Wyden proposal was "a reasonable way to provide these providers of the information to help them self-regulate themselves without penalty of law."
Cox said that "we do not wish to have a Federal Computer Commission with an army of bureaucrats regulating the Internet because frankly the Internet has grown up to be what it is without that kind of help from the Government."
There was very little media coverage of Section 230, and the little coverage that existed was focused on it being a market-based alternative to the Senate version.
In an odd compromise, both the House and Senate versions were added to the final telecom act. The Supreme Court soon struck down the Senate's CDA, leaving Section 230.
It would take another year for a court (the Fourth Circuit) to broadly interpret (c)(1) as providing very broad protections for online platforms. Courts have widely adopted the Fourth Circuit's interpretation since then, and the vast majority of 230 cases...
have been decided based on (c)(1) rather than (c)(2).
Part of that is because (c)(1) encompasses the sorts of claims that platforms face, such as defamation, and there typically are not as many viable claims based on a platform's blocking of certain content. Also, (c)(1) does not have a "good faith" requirement.
There's a lot more to Section 230's history, including exceptions for IP law and federal criminal law, and courts determining whether the platform has contributed to the creation of the content (and therefore is not immune under 230).
And, of course, that's all in the book!
One of the most interesting things about 230 from a historical perspective is how few people cared about it at the time it was being debated and passed. The trade press discussion was so focused on landline telephone issues. Which nowadays, well...
I also question whether Congress would have passed Section 230 had it not been for the one NY state trial judge ruling in the Prodigy case, which I think was a pretty bad ruling that was not consistent with precedent.
Had Congress not passed Section 230, we'd have a very different Internet. Not entirely certain what it would look like, but platforms would not be nearly as empowered to allow some user content to remain online.
Much also has been made of the 5 findings and 5 policy statements in 230. These all illustrate the hands-off, free-market vision of the Internet (and many of them came directly from a @CenDemTech report on user empowerment)
230 findings:
230 policy statement:
The findings discuss the Internet as a "forum for a true diversity of political discourse." At the time, the real threat to this diversity was government censorship. In fact, the initial version of 230 explicitly banned FCC regulation of Internet content (deleted in conf. comm.)
The debate did not really address what happens if people accuse platforms of misusing their power because, at the time, the platforms were not terribly powerful. 40 million people worldwide had Internet access. There was not debate about "what if Compuserve is unfair to us?"
Obviously, things have changed and platforms have immensely more power than they did in 1996. But it's hard to find anything on-point from the 1995-96 debates that addresses the current controversy.
I'll try to do more 230 threads this week, including to address how courts have interpreted 230, and the differences in (c)(1) and (c)(2) cases.
