When Section 230 of the Communications Decency Act was enacted in 1996, the internet was a far smaller and friendlier place. The controversial law--which frees online platforms of legal responsibility for most of the content that their users post--passed amid the early days of the dot-com bubble, when many of today's tech giants were still young upstarts. Social media platforms Facebook and Twitter were years away from launching, let alone becoming the behemoths they are now.
Section 230 played a big role in enabling the astounding growth of tech firms that rely on third-party content. Now, with calls to repeal the law coming from all over the political spectrum, it's fair to ask whether a startup in 2021 still could thrive without its protections.
That's a quandary facing both lawmakers and digital rights advocates. Critics of repealing 230 argue that new platforms, fearful of mountains of litigation, will opt to no longer allow any third-party content at all. Some fear that repeal could end the free internet as we know it. But even among the anti-repeal factions in Washington, D.C., and Silicon Valley, there's a growing consensus that the law is in need of some sort of reform.
"Section 230 was laid out in a very different era online, and while many aspects were prescient and should be preserved, others are overdue for reform," says William Partin, a research analyst at the internet research group Data & Society. Some have suggested that the law be amended to include only written speech, as opposed to photos, videos, and other types of content.
"I think the vital thing is ensuring that its worthy goals are preserved," Partin says. "That is, to protect moderation efforts by platforms that can be demonstrably shown to have been conducted in good faith."
Repealing Section 230 has long been a policy priority of President Trump and his Republican allies in Congress. The issue gained steam in the aftermath of the January 6 riots at the U.S. Capitol, when Facebook, Twitter, Snapchat, and other big tech companies concluded that Trump had violated their content policies and booted him from their platforms. Google, Apple, and Amazon also effectively shut down Parler, a relatively new social platform where users regularly called for violence in the weeks leading up to the riots.
Trump's supporters see the demise of the law as a way to punish the tech giants for what they perceive as an anti-conservative bias. But it's Section 230's "tech immunity shield" that has granted those supporters an online environment where they can post nearly whatever they want in the first place. Online platforms have enormous latitude on how much or how little they moderate, which has allowed the type of content that preceded the riots to proliferate.
Thanks to Section 230, social media giants have been able turn a blind eye as their platforms fuel online harassment and violent acts, influence elections, and become a portal for state-sponsored propaganda. Instead of global events influencing social media, it's become the other way around. That's an outcome that both regulators and internet companies could scarcely have imagined in 1996.
For his part, President-Elect Biden has said he is in favor of repealing the law as well. But Congress may be more likely to take action than the eecutive branch. While the FCC under Trump argued that it had rulemaking authority over Section 230, FCC commissioner Jessica Rosenworcel, who is expected to lead the agency under Biden, has said that it's not the job of the FCC to serve as the president's "speech police."
Measured reforms like the Earn It Act and the PACT Act have bipartisan support in Congress. And while both bills have drawn their fair share of criticism from tech groups, academics, and civil rights organizations, most seem to agree that reforming Section 230 is a better way forward than dumping the law altogether.
"If you repeal Section 230, one of two things will happen. Either platforms will decide they don't want to moderate anything, or platforms will moderate everything," says Sinan Aural, an MIT professor and the author of The Hype Machine. Instead, he is advocating for a national commission of industry experts, scientists, journalists, and academics that can weigh the fate of everything from Section 230 to election influence to antitrust issues surrounding big tech.
But how would Section 230 reform affect small businesses? Co-sponsored by senators Brian Schatz (D-Hawaii) and John Thune (R-North Dakota), the PACT Act--which requires online platforms to remove content in certain cases, such as when served with a court order--includes some rule exemptions for platforms that generate less than $25 million in annual revenue and attract fewer than one million monthly active users.
No further action on the bill was taken after it was referred to the relevant Senate committee last summer. Even if it were to be reintroduced in the new Senate, there are still concerns that such rules wouldn't be enough to protect small tech firms from liability. The Electronic Frontier Foundation, a nonprofit digital rights group that opposes the PACT Act, argues that it gives big tech an advantage over startups. Small firms, the organization argues, simply don't have the financial resources to meet new regulations or take on the burden of liability for their user content.
There's also ample criticism of the Earn It Act, which would amend Section 230 to hold businesses liable for acts of child sex exploitation that occur on their platforms. Filtering content to comply with the measure would be far too expensive and onerous for small companies, note Katie Jordan and Ryan Polk, senior policy advisers at nonprofit think tank the Internet Society, in a blog post. The Senate judiciary committee unanimously approved the legislation last summer, and a companion bill in the House was introduced in October.
What remains clear is that while we no longer live in the internet of 1996, we no longer can live in the internet of today without real threats of harm to many groups and individuals. Moving forward, tech platforms need to look very different, and reforms to Section 230 will likely play a pivotal role in shaping them.
But any one-size-fits-all approach to reform has the potential to benefit big tech over small and midsize businesses. Founders of tech startups, instead of being passive actors in the reform process, should make the most of the advantages they have at this moment over large, established companies. It's easier to design a new product with a certain vision in mind than to tailor an existing platform and risk alienating your user base.
And it doesn't take an internet scholar to know that all unmoderated platforms quickly descend into chaos. Every popular app and website attracts both the best and worst of human nature, and if left unchecked, the latter always wins. Given what we know about the average internet user, founders should move away from the destructive internet of past decades and strive toward a better future.