Section 230
Section 230 is a section of Title 47 of the United States Code that was enacted as part of the Communications Decency Act of 1996, which is Title V of the Telecommunications Act of 1996, and generally provides immunity for online computer services with respect to third-party content generated by its users. At its core, Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by third-party users:
Long title
Protection For 'Good Samaritan' Blocking and Screening of Offensive Material
Section 230
February 8, 1996
Section 230(c)(2) further provides "Good Samaritan" protection from civil liability for operators of interactive computer services in the good faith removal or moderation of third-party material they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."
Section 230 was developed in response to a pair of lawsuits against online discussion platforms in the early 1990s that resulted in different interpretations of whether the service providers should be treated as publishers or, alternatively, as distributors of content created by their users. Its authors, Representatives Christopher Cox and Ron Wyden, believed interactive computer services should be treated as distributors, not liable for the content they distributed, as a means to protect the growing Internet at the time.
Section 230 was enacted as part of the Communications Decency Act (CDA) of 1996 (a common name for Title V of the Telecommunications Act of 1996), formally codified as part of the Communications Act of 1934 at 47 U.S.C. § 230.[a] After passage of the Telecommunications Act, the CDA was challenged in courts and was ruled by the Supreme Court in Reno v. American Civil Liberties Union (1997) to be unconstitutional, though Section 230 was determined to be severable from the rest of the legislation and remained in place. Since then, several legal challenges have validated the constitutionality of Section 230.
Section 230 protections are not limitless and require providers to remove material illegal on a federal level, such as in copyright infringement cases. In 2018, Section 230 was amended by the Stop Enabling Sex Traffickers Act (FOSTA-SESTA) to require the removal of material violating federal and state sex trafficking laws. In the following years, protections from Section 230 have come under more scrutiny on issues related to hate speech and ideological biases in relation to the power that technology companies can hold on political discussions and became a major issue during the 2020 United States presidential election, especially with regard to alleged censorship of more conservative viewpoints on social media.
Passed when Internet use was just starting to expand in both breadth of services and range of consumers in the United States,[2] Section 230 has frequently been referred to as a key law, which allowed the Internet to develop.[3]
Impact[edit]
Section 230 has often been called "The 26 words that made the Internet".[2] The passage and subsequent legal history supporting the constitutionality of Section 230 have been considered essential to the growth of the Internet through the early part of the 21st century. Coupled with the Digital Millennium Copyright Act (DMCA) of 1998, Section 230 provides internet service providers safe harbors to operate as intermediaries of content without fear of being liable for that content as long as they take reasonable steps to delete or prevent access to that content. These protections allowed experimental and novel applications in the Internet area without fear of legal ramifications, creating the foundations of modern Internet services such as advanced search engines, social media, video streaming, and cloud computing. NERA Economic Consulting estimated in 2017 that Section 230 and the DMCA, combined, contributed about 425,000 jobs to the U.S. in 2017 and represented a total revenue of US$44 billion annually.[26]
Subsequent history[edit]
Early challenges – Zeran v. AOL (1997–2008)[edit]
The first major challenge to Section 230 itself was Zeran v. AOL, a 1997 case decided at the Fourth Circuit.[27] The case involved a person that sued America Online (AOL) for failing to remove, in a timely manner, libelous ads posted by AOL users that inappropriately connected his home phone number to the Oklahoma City bombing. The court found for AOL and upheld the constitutionality of Section 230, stating that Section 230 "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service."[28] The court asserted in its ruling Congress's rationale for Section 230 was to give Internet service providers broad immunity "to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material."[27] In addition, Zeran notes "the amount of information communicated via interactive computer services is ... staggering. The specter of tort liability in an area of such prolific speech would have an obviously chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect."[27]
This rule, cementing Section 230's liability protections, has been considered one of the most important case laws affecting the growth of the Internet, allowing websites to be able to incorporate user-generated content without fear of prosecution.[29] However, at the same time, this has led to Section 230 being used as a shield for some website owners as courts have ruled Section 230 provides complete immunity for ISPs with regard to the torts committed by their users over their systems.[30][31] Through the next decade, most cases involving Section 230 challenges generally fell in favor of service providers, ruling in favor of their immunity from third-party content on their sites.[31]
Erosion of Section 230 immunity – Roommates.com (2008–16)[edit]
While Section 230 had seemed to have given near complete immunity to service providers in its first decade, new case law around 2008 started to find cases where providers can be liable for user content due to being a "publisher or speaker" related to that content under §230(c)(1). One of the first such cases to make this challenge was Fair Housing Council of San Fernando Valley v. Roommates.com, LLC 521 F.3d 1157 (9th Cir. 2008),[32] The case centered on the services of Roommates.com that helped to match renters based on profiles they created on their website; this profile was generated by a mandatory questionnaire and which included information about their gender and race and preferred roommates' race. The Fair Housing Council of San Fernando Valley stated this created discrimination and violated the Fair Housing Act, and asserted that Roommates.com was liable for this. In 2008, the Ninth Circuit in an en banc decision ruled against Roommates.com, agreeing that its required profile system made it an information content provider and thus ineligible to receive the protections of §230(c)(1).[31]
The decision from Roommates.com was considered to be the most significant deviation from Zeran in how Section 230 was handled in case law.[31][33] Eric Goldman of the Santa Clara University School of Law wrote that while the Ninth Circuit's decision in Roommates.com was tailored to apply to a limited number of websites, he was "fairly confident that lots of duck-biting plaintiffs will try to capitalize on this opinion and they will find some judges who ignore the philosophical statements and instead turn a decision on the opinion's myriad of ambiguities".[31][34] Over the next several years, a number of cases cited the Ninth Circuit's decision in Roommates.com to limit some of the Section 230 immunity to websites. Law professor Jeff Kosseff of the United States Naval Academy reviewed 27 cases in the 2015–2016 year involving Section 230 immunity concerns, and found more than half of them had denied the service provider immunity, in contrast to a similar study he had performed in from 2001 to 2002 where a majority of cases granted the website immunity; Kosseff asserted that the Roommates.com decision was the key factor that led to this change.[31]
Sex trafficking – Backpage.com and FOSTA-SESTA (2012–17)[edit]
Around 2001, a University of Pennsylvania paper warned that "online sexual victimization of American children appears to have reached epidemic proportions" due to the allowances granted by Section 230.[35] Over the next decade, advocates against such exploitation, such as the National Center for Missing and Exploited Children and Cook County Sheriff Tom Dart, pressured major websites to block or remove content related to sex trafficking, leading to sites like Facebook, MySpace, and Craigslist to pull such content. Because mainstream sites were blocking this content, those that engaged or profited from trafficking started to use more obscure sites, leading to the creation of sites like Backpage. In addition to removing these from the public eye, these new sites worked to obscure what trafficking was going on and who was behind it, limiting ability for law enforcement to take action.[35] Backpage and similar sites quickly came under numerous lawsuits from victims of the sex traffickers and exploiters for enabling this crime, but the court continually found in favor of Backpage due to Section 230.[36] Attempts to block Backpage from using credit card services as to deny them revenue was also defeated in the courts, as Section 230 allowed their actions to stand in January 2017.[37]
Due to numerous complaints from constituents, Congress began an investigation into Backpage and similar sites in January 2017, finding Backpage complicit in aiding and profiting from illegal sex trafficking.[38] Subsequently, Congress introduced the FOSTA-SESTA bills: the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) in the House of Representatives by Ann Wagner (R-MO) in April 2017, and the Stop Enabling Sex Traffickers Act (SESTA) U.S. Senate bill introduced by Rob Portman (R-OH) in August 2017. Combined, the FOSTA-SESTA bills modified Section 230 to exempt service providers from Section 230 immunity when dealing with civil or criminal crimes related to sex trafficking,[39] which removes section 230 immunity for services that knowingly facilitate or support sex trafficking.[40] The bill passed both Houses and was signed into law by President Donald Trump on April 11, 2018.[41][42]
The bills were criticized by pro-free speech and pro-Internet groups as a "disguised internet censorship bill" that weakens the section 230 immunity, places unnecessary burdens on Internet companies and intermediaries that handle user-generated content or communications with service providers required to proactively take action against sex trafficking activities, and requires a "team of lawyers" to evaluate all possible scenarios under state and federal law (which may be financially unfeasible for smaller companies).[43][44][45][46][47] Critics also argued that FOSTA-SESTA did not distinguish between consensual, legal sex offerings from non-consensual ones, and argued it would cause websites otherwise engaged in legal offerings of sex work would be threatened with liability charges.[38] Online sex workers argued that the bill would harm their safety, as the platforms they utilize for offering and discussing sexual services in a legal manner (as an alternative to street prostitution) had begun to reduce their services or shut down entirely due to the threat of liability under the bill.[48][49]
Debate on protections for social media (2016–present)[edit]
Many social media sites, notably the Big Tech companies of Facebook, Google, and Apple, as well as Twitter, have come under scrutiny as a result of the alleged Russian interference in the 2016 United States elections, where it was alleged that Russian agents used the sites to spread propaganda and fake news to swing the election in favor of Donald Trump. These platforms also were criticized for not taking action against users that used the social media outlets for harassment and hate speech against others. Shortly after the passage of FOSTA-SESTA acts, some in Congress recognized that additional changes should be made to Section 230 to require service providers to deal with these bad actors, beyond what Section 230 already provided to them.[50]
In 2020 Judge Clarence Thomas made a statement in respect of denying certiorari to Malwarebytes, Inc. v. Enigma Software Group USA, LLC., which referenced Robert Katzman's dissent in Force v. Facebook. He opined that section 230 had been interpreted too broadly, and could be narrowed or eliminated in a future case, which he urged his colleagues to hear.
Similar legislation in other countries[edit]
European Union[edit]
Directive 2000/31/EC,[207] the e-Commerce Directive, establishes a safe harbor regime for hosting providers:
