The most debated and criticized piece of law in the United States at the moment is Section 230 of Communications Decency Act (CDA), which makes it all that much more frustrating that nobody seems to understand it.
Two men that do, because they wrote it, and appeared on a livestream on Wednesday, below, in an effort to inject some understanding into the debate. Chris Cox is a former chairman of the SEC, Reagan administration staffer, and Republican House Representative for Orange County in California for 17 years. And Ron Wyden is a Democratic Senator for Oregon.
Back in 1996 they were both in the House of Reps worried about the impact of a new piece of legislation pushed by Senator James Exon (D-NE) that was aimed at tackling a new scourge: pornography on the internet.
At the time there was no Google nor Facebook, and Big Tech comprised mainly of ISPs that also offered content, such as AOL and Prodigy. Wyden and Cox realized, however, that a big part of the internet’s attraction, and its likely explosive future growth, was the ability of ordinary internet users to post their own content onto the web.
They surmised pretty quickly that without something in the law to protect the companies that allow users to post this information on the World Wide Web that those companies would be quickly swamped with lawsuits through no fault of their own as users uploaded and shared contentious material.
And so Section 230 of the CDA was born, comprising just 26 words but which has been repeatedly held up as the clause that helped the modern internet develop:
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.
Now in the era of Facebook and Google where their platforms have become extraordinary amplifiers of misinformation, election manipulation, bullying, hate speech, and every other form of unpleasant human communication, Section 230 has become a frequent target across the political spectrum, from President Donald Trump to Attorney General Bill Barr to Democratic presidential hopeful Joe Biden, and everyone in between.
And every one of them has got it wrong, say Cox and Wyden.
First up, they note that the accepted wisdom these days that they devised Section 230 in order to protect the fledgling internet industry is simply “not true – we never had that idea,” said Cox. Instead they saw “a special problem that would only get worse,” as the internet was enabling people to, for the first time, communicate and share information globally and immediately in real-time – so immediately, it was hard for the rest of society to keep up as it had grown synchronized to slow newsprint cycles and TV scheduling.
Another fallacy is that the law was the result of some kind of lobbying from tech companies, and was therefore designed for a different time, an argument pushed by Attorney General Barr himself. Not so, say both. “We were so far ahead of the curve on this that no one was lobbying on it,” explained Cox.
The big ISPs of the time “never even showed up,” explained Wyden. The clause was “completely free of lobbying pressure.” Cox revealed that Barr’s utterings on Section 230, especially on this point, “drive me nuts.”
Another major problem they both have is with the actual law and what it actually does, and what politicians and policywonks claim it does. Section 230 provides no legal shield for illegal or criminal behavior. If it is illegal, nothing in Section 230 has any impact one way or another: anyone involved in that is at risk of prosecution.
Cox pointed to the now-famous case of Backpage, which tried to use Section 230 to argue immunity against sex-trafficking ads that appeared on its site. In its case, Backpage was actively involved in the content, even assisting the people placing the ads in how to phrase them, pulling out terms or phrases that crossed the line.
Section 230 was also supposed to keep the government away from deciding what content could and could not appear on internet platforms, a position that Cox and Wyden still stand by. Both condemned the idea being floated right now in the upcoming EARN IT Act that some kind of committee – Cox called it a “cockamanie commission” – be created to make such decisions.
That approach introduces the “risk of political control of content,” warned Cox. “We don’t want a speech police, we want users to be able to express themselves.” The version of CDA first proposed by Senator Exon was going to effectively create a federal model of content approval.
Wyden agreed with Cox, noting that the draft EARN-IT Act will effectively introduce “the big speech police,” and that he was “stunned that conservative Republicans want speech police with Bill Barr in charge.”
Which leads to another bugbear. Wyden said that much of the ongoing discussion and complaints around the section result from a “conflation between the First Amendment [on free speech] and hate speech and Section 230.” He pointed to a correction in the New York Times that admitted it did exactly this in a recent lengthy article on Section 230.
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Yet another fallacy: that Section 230 insists on some kind of neutrality in speech. This line has come from the President himself in the form of an executive order in which he declared that there was political bias in online platforms, with conservative voices being treated differently, and that under Section 230 there was a requirement for neutrality.
Nonsense, said Wyden and Cox. “Neutrality is never mentioned,” noted Wyden. Cox was also scathing of Trump’s executive order, arguing that it “over reaches” and is “factually inconsistent.” The idea of introducing a subjective standard for online platforms would be a disaster, he warned, and would be a huge liability and a huge burden for tech companies.
Cox also pointed out there is no need for neutrality – different platforms can host whatever content they wish – though platforms ought to apply their moderation policies and terms-of-service fairly and consistently. The responsibility for that lies with state and federal regulators who must make platforms “accountable for their moderation,” he added.
So what changes?
Crucially, however, both men did not argue that Section 230 must stay untouched. All they want is for people to understand what it does and does not do before they start messing about with it.
Wyden said he is constantly asked what changes need to be made, and wants to flip it around the other way and have everyone agree on the criteria that any proposed changes should be held against.
He said there should be no changes that “target constitutionally protected speech,” and “anything done should not discourage moderation by internet platforms.” Every proposal that violates one of both of those principles should be immediately binned. He confessed he is spending a good deal of his time in Congress “trying to catch phony theories with a net and respond to them.”
And in a dig at his own party’s presidential candidate Joe Biden, who has said Section 230 should be scrapped altogether, Wyden says that “those who want to throw it out need to say what they are going to do instead.”
As for Cox, he is hopeful the very history of Section 230 is what will turn what has been a poorly informed and often wildly ignorant discussion of the protective clause into its salvation.
“When the Communications Decency Act came to the House, it was expected that we would [pass it quickly]” because the law had been pitched as dealing with pornography and child abuse imagery, he said. But, he explained, “Ron and I spent a lot of time educating our colleagues and reversed the conventional wisdom on it.”
Cox has “faith that that will happen again,” when it comes to actually modifying the law. “The problems are real, but what’s an effective fix?”
Getting to the actual problem that everyone seeks to fix by changing Section 230, Cox pointed a finger at the the web giants themselves: “Platforms can make the changes themselves preemptively and we’ll all be pleased.” He suggested those platforms open up about their moderation systems and policies, and “take the mystery out of it.”
As for Wyden, he doesn’t see content moderation as the biggest problem at all. For him, it is the lack of privacy protections that is the most egregious behavior.
“Big Tech has dramatically let us down when it comes to privacy protection,” he argued before targeting Facebook CEO Mark Zuckerberg specifically. “Zuckerberg blatantly lied when it comes to privacy protections… all they’re interested in is selling ads.” ®