All Roads Lead to Section 230
If you want to know how the internet became the glorious, maddening, democracy-threatening mess it is today, you need to peer into the massive federal code—sorry—and read a short provision from more than two decades ago known as “Section 230.”
Or you could just read on.
This little-understood law, part of the Communications Decency Act of 1996, shields digital platforms from the kind of legal liability traditional publishers face for the words they release into the public realm. It was meant to protect the nascent information-sharing economy from being smothered by libel and slander suits over things people said in unmoderated virtual spaces like chatrooms, and it’s been heralded as “the most important law protecting internet speech.” But on Wednesday, Section 230 will find itself in the sights of several upset members of the US Senate’s Commerce Committee, which has summoned the CEOs of Twitter, Google, and Facebook to answer some pointed questions.
Among those questions: Does Section 230, in the words of the committee’s hearing announcement, actually “enable Big Tech bad behavior”? And after 24 years, has this law “outlived its usefulness”?
Politics will likely take center stage at this pre-election show. Republicans who control the committee seem certain to fume about Twitter and Facebook using the powers Congress gave them under Section 230 to slow the spread of a controversial New York Post article about Hunter Biden earlier this month.
But beneath the current contretemps, there’s a deeper force driving this confrontation. Whether you’re on the left or right, if you’re among the many people who worry about where American democracy is headed in this era of easy speech over mammoth digital platforms controlled by a few super-wealthy men, and you’re serious about figuring out how we got to this point, then you inevitably end up at Section 230.
In an odd historical twist, this brief but mighty law was birthed inside a reactionary bill targeting online porn. It survived when much of that bill was struck down by the US Supreme Court in 1997, and it went on to become the reason social media as we know it exists. Today it gives platforms such as Facebook immunity from being sued over the damaging things people say through the high-powered, world-spanning digital megaphones they’re handed free of charge.
Held at a different angle, Section 230 also provides those same tech companies with the legal breathing room to offer free megaphones to all voices, including unorthodox, unpopular, and historically marginalized voices, with the best recent example of this being the launch of the Black Lives Matter Movement on America’s digital platforms.
In addition, Section 230 gives Facebook and other tech giants broad leeway to make up—and constantly change—their own private content moderation policies without facing lawsuits. (So long as they act “in good faith” to block material that they, or their users, consider to be objectionable, “whether or not such material is constitutionally protected.”)
Boil that all down and you get a lot of power with little legal accountability.
And at the moment, the way America’s tech giants are using the power Congress granted them has upset a lot of powerful people, most volubly a group of prominent conservatives who claim—without evidence—that Big Tech is using the might of its content moderation apparatus to mostly silence Republicans.
This seems more a strategy to “work the refs” in favor of unrestricted distribution for Trumpian propaganda than a serious, supportable argument. But there are other concerns—rooted in the tech platforms’ failure to stop Russian election interference in 2016, their continued role as vectors for viral disinformation, the ongoing plague of digital harassment, and recurring online incitements to real-world violence—that have led both liberals and conservatives to propose tweaks (and more) to Section 230.
Just two weeks ago, US Supreme Court Justice Clarence Thomas went out of his way to invite a legal challenge to Section 230 that could allow the high court to constrain a sweeping immunity for tech giants that, over the years, has been stretched “far beyond anything that plausibly could have been intended by Congress,” according to a legal treatise cited by Justice Thomas. Not long after Justice Thomas issued this invitation, the Republican Chairman of the Federal Communications Commission, Ajit Pai, decided to move his agency toward action on President Trump’s repeated threats to weaken the “liability shield” Section 230 provides.
Earlier this year, Democratic presidential candidate Joe Biden said he wants Section 230 “revoked, immediately.” And a number of Democratic Senators—as well as a former Democratic Congressman, Beto O’Rourke—have put forward various proposals to either narrow Section 230’s immunity or make it contingent upon reform of the platforms’ content moderation policies.
So expect fireworks at Wednesday’s hearing. But don’t expect it to dive into a clash between Section 230 and democracy that this newsletter is particularly interested in: Washington State vs. Facebook.
In that overlooked case, which definitely doesn’t involve any alleged Hunter Biden emails that might interest Republican members of the Senate Commerce Committee, one of Facebook’s main defenses against charges that it repeatedly failed to follow Washington state’s law on political ad disclosure is—wait for it—Section 230.
To briefly summarize somewhat complex arguments, Facebook is saying that by requiring the platform to release specific information on political ads, Washington state is treating Facebook as the “publisher” of those ads, which it can’t do under Section 230.
In response, Washington State Attorney General Bob Ferguson says the state law does no such thing. It merely requires that Facebook keep records about political ads and then make those records public upon request. “Because retention and disclosure are not core ‘publishing functions,’” Ferguson argues, “Section 230 does not apply.”
The merits of these opposing arguments will be worked out in court, but if you step back from the close-quarters legal combat a rather incredible picture emerges: In defending itself against this lawsuit, Facebook is trying to use Section 230 to block a state’s right to regulate its own elections.
Margaret O’Mara, a history professor at the University of Washington and author of The Code: Silicon Valley and the Remaking of America, said that in the long view, many present day uses of Section 230 are quite distant from anything Congress could have envisioned.
“The current state of affairs would have been the farthest thing from the minds of the drafters of 230 (and more broadly the Communications Decency Act),” O’Mara told Wild West. “Because the internet we have now simply didn’t exist in early 1996, when they passed it into law. Mark Zuckerberg was 11. Sergey Brin and Larry Page were a couple of lately-arrived grad students at Stanford. When it came to the online world, most in Congress were primarily worried about keeping its abundant supply of porn from children’s innocent eyes. The more tech-savvy of them wanted to ensure that growing Silicon Valley internet companies were not trampled by telecoms before they reached commercial velocity. The platform services that inspired the provision were Compuserve and Prodigy. Just an utterly different political and technological moment!”
In the more buttoned up language of legal briefs, Ferguson has made a similar point, and one that—in a different context, and from a different end of the political spectrum—echoes the points made recently by Justice Thomas.
“Reading Section 230 in the expansive manner Facebook suggests would exempt it from campaign finance disclosure requirements far afield from Congress’s original purpose,” a Ferguson filing said in July.
I’ll be watching the Senate’s hearing on Section 230 this Wednesday and if by some chance Washington State vs. Facebook comes up, I’ll definitely let you know.
Reminder: Facebook’s nationwide ban on political ads—yet another thing that traces to powers given to Facebook by Section 230—will begin at the stroke of midnight tonight, October 26.
The ban, Facebook says, will last until some yet-to-be-determined time after the Election Day dust settles.
I remain skeptical this ban will be completely airtight, based on Facebook’s ongoing failure to enforce a similar ban on political ads targeting Washington state. So if you see new political ads of any kind, national or local, running on Facebook beginning tomorrow, please send me a screenshot at wildwestnewsletter@gmail.com.
(Note: According to the terms of Facebook’s nationwide ban, political ads purchased before October 26 can still run after October 26 if that’s how the client arranged the ad run. So if you see a new-seeming ad after today, click on over to the Facebook ad library and see if it’s part of a group of ads that actually began running before October 26. If so, it’s probably not a violation of the ban.)
As always, some tech stories that I think are worth your time:
• “Try these searches” — Geoffrey Fowler of The Washington Post shows how Google’s alleged monopoly harms you as a search consumer.
• “A deal that controls the internet” — The New York Times on a relatively quiet deal between Google and Apple that’s worth billions of dollars and is now a part of the Justice Department’s antitrust lawsuit against Google.
• “Police Can Open Your Phone” — Shira Ovide of The New York Times on why that’s okay.
• “Not a permissible means of collecting information from us” — Facebook, in a letter attempting to shut down academic researchers at NYU who’ve launched the Ad Observer. This browser extension, now in use by 6,500 people, allows the researchers to learn more about the secretive targeting of Facebook political ads.
• “Facebook usage is five times more polarizing for conservatives than for liberals” — An important new analysis by three information technology professors at the University of Virginia.
• “Dangerous ends” —Michael Steinberger peers inside the all-seeing data company, Palantir.
• “Russian money went in” — Former Federal Election Commission Chair Ann Ravel, who last month noted on Twitter that she’s a Wild West subscriber, speaking in a new documentary called Fish in a Barrel. It’s about “how the NRA took over our elections—and how Russia took over the NRA.”
Questions? Tips? Comments? wildwestnewsletter@gmail.com
Photo: Seattle Municipal Archives