A cautionary tale on internet freedom carve-outs

Conservatives and liberals in the new Congress seem eager to continue a campaign against the rougher edges of the internet. But anyone seeking to hold internet platforms responsible for the problematic ways in which some people use them — through fake or biased news, incendiary speech, or even lawbreaking — would be wise to look at the history of such efforts.

1996’s “Section 230” of the Communications Decency Act is often credited as the law that gave us the internet. The legislative intervention protected early intermediaries including search engines, message boards, payment processers, and internet service providers (ISPs) from being considered “publishers” of their users’ content. This in turn protected internet platforms from legal liability when they inevitably could not (or would not) control the expression of millions of people.{mosads}

Today much of the Internet, from social media and search engines to review sites and comment sections, relies on user-generated content. This thriving ecosystem came about in large part because we correctly viewed online intermediaries more like distributors (think bookstores and libraries) than traditional publishers.

But as the Internet evolved, policymakers and the public increasingly questioned this protection.

At times in 2018, Section 230 went from an internet protection law to congressional leverage against “Big Tech” companies. In a series of hearings last year with various technology executives, Section 230 was blamed for everything from suppression of conservative viewpoints to sex trafficking to the opioid epidemic.

Yet all of these arguments illustrate that many in Congress do not appear to understand how Section 230 works, what it protects, or the potential damage that carving out too many exemptions could do to innovation and free expression online. More of this same tired thinking risks significant consequences.

Last year saw the passage of the Stop Enabling Sex Traffickers Act (SESTA), largely as part of an effort to take down the controversial classifieds website Backpage.com. It carved out an exception to Section 230 that created additional criminal and civil liability for sex trafficking. But rather than simply closing gaps in existing laws that prevented us from bringing bad actors to justice, SESTA’s overly broad provisions pushed some sex workers from cyberspace back to dangerous streets and made it harder to find victims online.

Sexual health educators and sex worker advocates have also found themselves silenced by various platforms, making their jobs more dangerous by forcing them back onto the streets without a way to safely share information. As Kate D’Adamo stated in an interview with the Daily Beast, “People are asking, is hosting this information going to put me in jeopardy? And we can’t really say no.” 

In the months since SESTA became law, it has become increasingly clear that such carve-outs cannot be contained merely to bad actors. They have chilling, silencing effects on legitimate and valuable speech. A SESTA for the opioid epidemic would likely have similar far-reaching effects by silencing legitimate speech and preventing people from sharing resources that help address the problem. 

SESTA also showed how carve-outs to Section 230 are often unnecessary. Several law enforcement agencies were able to take down Backpage.com for actions related to sex trafficking before SESTA was signed into law. Most of the proposed exceptions targeting criminal activity like drugs or terrorism are similarly redundant.{mossecondads}

Section 230’s valuable protections allow content moderation decisions and liability protection not only for social media, but also for information resources like Wikipedia, review sites like Yelp, and even the comment sections of personal blogs or news sites. The owners of these platforms can choose how to moderate without fear that such decisions might land them in court, while knowing full well they have an obligation not to knowingly profit or facilitate illegal activities.

As journalist Elizabeth Nolan Brown points out, “If you set up a site that said ‘Sell your illegal opioids, sex-trafficking victims, and human kidneys here!’ it would not benefit from Section 230 protection, even if users are the ones directly selling these things.” 

Existing tech giants have the resources to handle the costs of each additional carve-out. But newer, more innovative entrants seeking to enter the market often do not, and that could cost us the next Yelp or even Facebook. Newer, better, more innovative platforms might never get off the ground due to liability concerns or the need to focus resources on content moderation rather than on the user experience.

The United States has been a leader in innovation thanks in part to Section 230 and the way it maintains a marketplace of ideas online. We can’t blame the law for the bad parts of the Internet unless we’re willing to give it some credit for helping to develop a wide variety of world-changing online products and communities.

Jennifer Huddleston Skees is a research fellow with the Mercatus Center at George Mason University. She has a JD from the University of Alabama School of Law and and a BA in political science at Wellesley College.