On Its 30th Birthday, Section 230 Remains The Linchpin For Users’ Speech

For thirty years, internet users have benefited from a key federal law that allows everyone to express themselves, find community, organize politically, and participate in society. Section 230, which protects internet users’ speech by protecting the online intermediaries we rely on, is the legal support that sustains the internet as we know it.

Yet as Section 230 turns 30 this week, there are bipartisan proposals in Congress to either repeal or sunset the law. These proposals seize upon legitimate concerns with the harmful and anti-competitive practices of the largest tech companies, but then misdirect that anger toward Section 230.

But rolling back or eliminating Section 230 will not stop invasive corporate surveillance that harms all internet users. Killing Section 230 won’t end the dominance of the current handful of large tech companies—it would cement their monopoly power. 

The current proposals also ignore a crucial question: what legal standard should replace Section 230? The bills provide no answer, refusing to grapple with the tradeoffs inherent in making online intermediaries liable for users’ speech.

This glaring omission shows what these proposals really are: grievances masquerading as legislation, not serious policy. Especially when the speech problems with alternatives to Section 230’s immunity are readily apparent, both in the U.S. and around the world. Experience shows that those systems result in more censorship of internet users’ lawful speech.

Let’s be clear: EFF defends Section 230 because it is the best available system to protect users’ speech online. By immunizing intermediaries for their users’ speech, Section 230 benefits users. Services can distribute our speech without filters, pre-clearance, or the threat of dubious takedown requests. Section 230 also directly protects internet users when they distribute other people’s speech online, such as when they reshare another users’ post or host a comment section on their blog.

It was the danger of losing the internet as a forum for diverse political discourse and culture that led to the law in 1996. Congress created Section 230’s limited civil immunity because it recognized that promoting more user speech outweighed potential harms. Congress decided that when harmful speech occurs, it’s the speaker that should be held responsible—not the service that hosts the speech. The law also protects social platforms when they remove posts that are obscene or violate the services’ own standards. And Section 230 has limits: it does not immunize services if they violate federal criminal laws.

Section 230 Alternatives Would Protect Less Speech

With so much debate around the downsides of Section 230, it’s worth considering: What are some of the alternatives to immunity, and how would they shape the internet?

The least protective legal regime for online speech would be strict liability. Here, intermediaries always would be liable for their users’ speech—regardless of whether they contributed to the harm, or even knew about the harmful speech. It would likely end the widespread availability and openness of social media and web hosting services we’re used to. Instead, services would not let users speak without vetting the content first, via upload filters or other means. Small intermediaries with niche communities may simply disappear under the weight of such heavy liability.

Another alternative: Imposing legal duties on intermediaries, such as requiring that they act “reasonably” to limit harmful user content. This would likely result in platforms monitoring users’ speech before distributing it, and being extremely cautious about what they allow users to say. That inevitably would lead to the removal of lawful speech—probably on a large scale. Intermediaries would not be willing to defend their users’ speech in court, even it is entirely lawful. In a world where any service could be easily sued over user speech, only the biggest services will survive. They’re the ones that would have the legal and technical resources to weather the flood of lawsuits.

Another option is a notice-and-takedown regime, like what exists under the Digital Millennium Copyright Act. That will also result in takedowns of legitimate speech. And there’s no doubt such a system will be abused. EFF has documented how the DMCA leads to widespread removal of lawful speech based on frivolous copyright infringement claims. Replacing Section 230 with a takedown system will invite similar behavior, and powerful figures and government officials will use it to silence their critics.

The closest alternative to Section 230’s immunity provides protections from liability until an impartial court has issued a full and final ruling that user-generated content is illegal, and ordered that it be removed. These systems ensure that intermediaries will not have to cave to frivolous claims. But they still leave open the potential for censorship because intermediaries are unlikely to fight every lawsuit that seeks to remove lawful speech. The cost of vindicating lawful speech in court may be too high for intermediaries to handle at scale.

By contrast, immunity takes the variable of whether an intermediary will stand up for their users’ speech out of the equation. That is why Section 230 maximizes the ability for users to speak online.

In some narrow situations, Section 230 may leave victims without a legal remedy. Proposals aimed at those gaps should be considered, though lawmakers should pay careful attention that in vindicating victims, they do not broadly censor users’ speech. But those legitimate concerns are not the criticisms that Congress is levying against Section 230.

EFF will continue to fight for Section 230, as it remains the best available system to protect everyone’s ability to speak online.

Reposted from EFF’s Deeplinks blog.