Published February 14, 2022
Don’t Destroy Section 230, Fix it
The EARN IT act contains a number of bad provisions, including what’s effectively a repeal of Section 230. Section 230 can and should be fixed, not removed.
Congress has reintroduced the EARN IT act, a terrible collection of poorly thought out policies wrapped around core provisions to destroy privacy and encryption on the internet. The EFF has produced a great deep dive into all the terrifying components of the bill. The surveillance components of the bill are the most concerning parts, but I wanted to focus on another area that is less well understood – Section 230.
What is Section 230?
From the congressional research service:
Section 230 of the Communications Act of 1934, enacted as part of the Communications Decency Act of 1996, provides limited federal immunity to providers and users of interactive computer services. The law generally precludes providers and users from being held liable—that is, legally responsible—for information provided by a third party, but does not prevent them from being held legally responsible for information that they have developed or for activities unrelated to third-party content. Courts have interpreted Section 230 to foreclose a wide variety of lawsuits and to preempt laws that would make providers and users liable for third-party content. For example, the law has been applied to protect online service providers like social media companies from lawsuits based on their decisions to transmit or take down user-generated content.
What does this mean?
The host or owner of a website is not responsible for the content posted by others. This applies not just to social media giants like Facebook and Youtube, but to any site that hosts content created by others. For example if a user on your local birdwatching forum slanders another member, that user is liable but not the person who hosts the forum.
What if the New York Times posts a column online that slanders someone? Section 230 does not protect them because they don’t just post anything, they have an editorial process and curate their content. This makes them a publisher, not just an online service provider and therefore is not protected by 230.
EARN IT and Section 230
There’s been a push by both parties to make changes to Section 230 for a number of reasons, and the EARN IT act is just the most recent.
The bill removes Section 230 protection for violations of federal and state criminal and civil laws regarding child sexual abuse material (CSAM). At first glance this seems reasonable, but it opens the door to 50 different sets of rules for liability, as long as they can even be tangentially tied to CSAM. Not only that, companies would have to follow “best practices” established by the Department of Justice to receive 230 protection. Those best practices include some of those privacy and encryption-destroying provisions mentioned earlier.
The lines have blurred
Section 230 made sense in 1996 when it was added, but times have changed and things aren’t as clear. How do we determine the difference between a true publisher and just an online service provider? If Facebook is controlling what third-party content you see, aren’t they making editorial decisions, even if by an algorithm? Additionally, eliminating Section 230 entirely also doesn’t make sense for the same reasons as when it was originally created: unneeded liability exposure would cripple online service providers that host communities.
A Sensible Solution
Updating Section 230 to reflect our modern information ecosystem is preferrable, and can be done in a rather straightforward manner. For example, a two-test provision could continue to protect the intended people without giving giant social media companies an overly broad shield from legal liability. The two tests would be:
- The online service provider does not adjust third-party content that the users see either manually or via an algorithm. They rely only on standard sorts/filters like most recent, most active, etc.
- The online service provider has less than 50 employees and $1M in revenue.
This would continue protections for both small sites that do more curation as well as very large sites (like Reddit) that do not while forcing companies like Facebook, Youtube, Twitter, etc to decide to either stop curating their content or be more thoughtful about it because they’re now exposed to legal liability.
What do we do?
The most important thing is to prevent EARN IT from passing. Contact your senators and representatives and tell them to say no to EARN IT again by sending SIGN PVLKLV or congress to the bot to start your own.