On Section 230’s 30th Birthday, A Look Back At Why It’s Such A Good Law And Why Messing With It Would Be Bad

Legal Issues

from the retrospective-omnibus dept

This past weekend Section 230 turned 30 years old. In those 30 years it has proven to be a marvelous yet misunderstood law, often gravely, as too many, including in Congress and the courts, mistakenly blame it for all the world’s ills, or at least those that happen in some connection with the Internet. When in reality, Section 230 is not why bad things happen online, but it is why good things can happen. And it’s why repealing it, or even “just” “reforming” it, will not stop the bad, but it will stop the good.

Unfortunately, even 30 years in, these ignorant efforts to diminish or even outright delete the law continue, despite the harm that would result if they succeeded. Which is why this anniversary seems like a good time to review why many of the reasons why the hostility towards Section 230 is so misplaced. Here at BestNetTech we’ve collectively all spilled a lot of digital ink over the years about why Section 230’s critics are wrong to condemn it, and not just a little bit but completely and utterly, as well as counter-productively. But on this celebratory occasion I thought it would be fun to look back on what I personally have written about Section 230—at least since its 20th birthday celebration and the piece I wrote then—and collect some of these “greatest hits” in a post to help get anyone new to thinking about Section 230, who may be unsure why those pushing to repeal it is so misguided, caught up on why Section 230 is not a law we should be messing with.

What Section 230 does. One reason that people get Section 230 wrong is that there are a lot of myths about it and what it does or does not do. A good place to start is with an overview of how it generally works, and if you like watching videos you can watch this presentation from a few years ago where I gave a crash course in its operation.

In short, though, Section 230 immunizes platform providers from liability in two key ways: for liability in what their users use their services for, and for liability that could possibly result in how they moderate their users’ use of their services. Section 230 aligns platforms providers with Congress and makes it possible for them to work towards what Congress wants—the most good material online, and the least bad—by making it legally possible for the providers to do the best they can to achieve it on both fronts. If it is legally safe for them to allow user expression, because they won’t have to fear being liable for it, they will allow the most good expression, and if it is legally safe for them to remove user expression, because they won’t have to fear being liable for their moderation, then, as this post explains, they will be able to remove the most that is bad.

But Section 230 is not some sort of special favor for Big Tech, as some have suggested. It’s not even one for startups, as others have alleged. In fact, it applies to regular people as much as it applies to anyone. Rather than it being any sort of subsidy, it instead operates more like a rule of civil procedure to make sure that platforms cannot be drained of resources having to defend themselves for whatever wrong a user’s conduct is accused. Which is also why “reforming” Section 230 effectively means repealing it, because nearly all the proposed reforms would make the statutory protection more conditional, but if platforms are unsure about whether they are protected or not and in jeopardy of having to litigate the question, then for all intents and purposes they are effectively unprotected, and they will act accordingly to defensively either deny more beneficial content, or leave up too much that is harmful (or both).

When Section 230 applies. One of the common myths about Section 230 is that it prevents anyone from ever being held responsible for how the Internet has been used. Not so; Section 230 does nothing to prevent anyone from being accountable for their own behavior. What it does not allow, however, is someone else being held accountable, namely the provider of the platform service they used, because, as discussed above, if the platform could have to answer for how any of their users used their services, they would never be able to offer their services, and if they couldn’t offer their services then there would be no Internet for anyone to use even for any of the good, useful, or important things we use it for.

Section 230 also doesn’t immunize platforms for their own actions, only those of their users. The issue sometimes is in telling the two apart, but as this post argues, it’s not actually as hard to figure out as some people would insist. First, the idea that there is some publisher/platform distinction is a fiction; the only thing that matters is whether the immune provider is providing an interactive computer service of some sort and someone else has provided the content, or if the platform has provided the content itself. And in the event we get confused about who the content provider is, we can look to see who imbued the offending expression with its allegedly wrongful quality, which more often than not is the user and not the platform. As we’ve understood since the Roommates.com case, that a platform has simply welcomed the expression isn’t enough to put the platform on the hook for it.

Furthermore, the type of content a platform might be immune for intermediating can be myriad, including online advertising, which is expression provided by others and then intermediated by a platform (despite what certain state governments think), online dating sites, or online marketplaces—although there have been some issues getting the courts to consistently recognize how Section 230 should apply in that context, even though the statutory history supports it. Although sometimes they still do.

Why Section 230 is important. Regulators can be tempted to take swings at Section 230 because it can be tempting to try to control what can be said on the Internet, and Section 230 gets in the way of those efforts. While the First Amendment also protects platforms’ ability to choose what user expression to facilitate, Section 230 makes that protection meaningful by making those choices practically possible. When they cannot be freely made, then the user expression they facilitate takes a hit.

Which is why efforts to change Section 230 are a problem, because of all the collateral damage they will cause to online expression.  But for some regulators, that censorship is the goal and why they have Section 230 in their sights. They want to prevent online expression, because too often it is online expression they don’t like. And, indeed, sometimes the speech is unfortunate, potentially even actionable.

But eliminating Section 230 is no solution at all. If we take away platforms’ ability to be platforms, then we take away everyone’s ability to use them to speak, no matter how important what they have to say is. It’s why we need to defend Section 230, even when it’s hard. There are always things that need to be said online, especially when we need to speak truth about power. Section 230 means we can. And we’d miss it if we couldn’t.

Filed Under: intermediary liability, section 230

Section 230 Turns 30; Both Parties Want It Gone—For Contradictory Reasons

Content Moderation

from the they're-both-wrong dept

Here’s what’s strange about Section 230 of the Communications Decency Act, the law that made the open internet possible: Both sides of the traditional political spectrum hate it. But for opposite reasons. That, alone, should highlight that something is wrong in their analysis.

Republicans hate it because they say it lets websites censor conservative speech. Democrats hate it because they say it lets websites host dangerous disinformation.

Read those two sentences again.

One side is furious that platforms can moderate. The other side is furious that platforms don’t have to moderate. Both sides are attacking the same 26-word provision of a 30-year-old law—and if you understand why their complaints are contradictory, you understand what Section 230 actually does.

This weekend marked the 30th anniversary of the Telecommunications Act of 1996, which contained the mostly unconstitutional Communications Decency Act, which inexplicably contained Section 230. (If you want the full history, I hosted a podcast series about it last year.) And after three decades, there’s now a concerted, bipartisan effort to kill it—by people who either don’t understand what the law does, or understand perfectly well and see its destruction as a path to controlling the flow of information online.

Years back I wrote a piece debunking many of the myths about 230. The myths have only multiplied since.

Both critiques, stripped of their partisan framing, are about the same thing: who gets to control what speech appears where. And Section 230’s answer to both sides is the same: pound sand.

That’s what the law actually does. It doesn’t mandate or prohibit “censorship.” It doesn’t require neutrality (that’s a myth that won’t die). It simply says: if you have a problem with content online, take it up with the person who created it, not the service hosting it. Platforms can moderate however they see fit—aggressively, lightly, inconsistently, politically—and they won’t face ruinous liability for those choices. They also won’t face liability for what they don’t remove.

This is what makes an open internet possible. Without that protection, no service would risk hosting user content at all. Or if they did, every moderation decision would require a lawyer’s sign-off, optimizing for liability reduction rather than healthy communities. The people who actually understand how to build good online spaces—trust and safety professionals, community managers—would be overruled by legal departments playing defense.

Almost all criticism of Section 230 is not actually about Section 230. It’s about one of two things: (1) not liking something in society that manifests online, and incorrectly believing that changing the law will somehow fix it, or (2) wanting control over what content platforms host.

So what happens if critics get their way? There’s a lobbying campaign right now claiming that reforming or repealing 230 will lead to “greater responsibility from tech companies.”

This is exactly backwards.

Without 230’s protections, smaller platforms—the ones that might actually compete with the giants—get destroyed first. They can’t afford the vexatious lawsuits. They can’t afford buildings full of lawyers. The big players survive, and their market position gets locked in even harder.

And those surviving giants won’t become more responsible. They’ll become less. Any competent legal team will tell them: the less you know, the less liability you have. Don’t proactively look for harmful content. Don’t research how your platform causes harm—those findings would be exhibit A in every lawsuit. Just stick your head in the sand and let the lawyers handle the subpoenas.

This is how liability regimes work, and America’s exceptionally litigious legal culture makes these incentives even stronger. The critics either don’t understand this or don’t care, because their actual goal was never “responsibility.” It was control. That they’ve duped some tech critics into thinking it’s about “responsibility” or “safety” doesn’t change that. Because it won’t improve responsibility or safety. But it will give politicians tremendous power over online speech.

Thirty years ago, a 26-word provision buried in a mostly unconstitutional law kicked off the open internet. It let anyone build a platform, host a community, create something new—without needing permission from lawyers or regulators first. That era is now under direct attack by people who misrepresent what Section 230 does and misrepresent what killing it would mean.

The open web turned 30 this weekend. The bipartisan campaign to kill it was never about responsibility or safety, it was always about control. Whether the open web sees age 31 comes down to 26 words that tell both sides to pound sand.

Filed Under: control, free speech, intermediary liability, open internet, section 230

Reflections On Section 230’s Past, Present, And Future On Its 30th Anniversary

Legal Issues

from the 230-is-30 dept

The Telecommunications Act of 1996 became law thirty years ago today, on February 8, 1996. Buried in a corner of that sprawling law was Section 230, a law that says websites aren’t liable for third-party content.

Section 230 didn’t receive much attention when it was passed, but it has since emerged as one of Congress’ most important media laws ever. Section 230 helped trigger the Web 2.0 era–where people principally talk with each other online, rather than just having content broadcast at them one-way. By enabling that discourse and other new categories of human interaction, Section 230 has thus reshaped the Internet and, by extension, our economy, our government, and our society.

To commemorate Section 230’s 30th anniversary, this post considers Section 230’s past, present, and future.

* * *

Section 230’s Past

“Big Tech” Didn’t Lobby for Section 230. Google and Facebook didn’t exist in 1996; they emerged in the wake of Section 230’s passage. In 1996, the Internet industry was small, especially as compared to other media industries like cable or telephony. However, AOL played a key role in Section 230’s passage, as evidenced by the fact Section 230 uses statutory terms like “interactive computer service” and “information content provider” (a really terrible phrase) that mirror AOL’s idiosyncratic jargon.

The Internet Industry Didn’t Initially Celebrate Section 230’s Passage. I’m not aware of any fetes in 1996 that celebrated Section 230’s passage. That’s because Section 230 was overshadowed by another part of the Telecommunications Act of 1996, the Communications Decency Act (CDA). The CDA imposed an unmanageable risk of criminal liability on Internet companies for user-generated content, so Internet executives were panicked that they might go to jail for the ordinary operation of their services. There was no time to get excited about Section 230’s long-term implications in the face of the immediate threat of criminal prosecution.

A week after the act’s passage, a district court enjoined the CDA, and the industry panic slightly abated. The industry relaxed a little more when the Supreme Court struck down the CDA as unconstitutional in 1997 (the Reno v. ACLU decision). However, that relief was short-lived because Congress quickly passed another law to criminalize user-generated content (the Child Online Protection Act of 1998, ultimately declared unconstitutional). So for years after Section 230’s passage, the industry was preoccupied by Congress’ UGC criminalization efforts.

Section 230’s Impact Wasn’t Immediately Clear. Section 230 includes some unusual and non-intuitive statutory language. As a result, the Internet industry wasn’t initially sure exactly what it said. Section 230’s potential scope only started to emerge after the district court ruling in Zeran v. AOL in March 1997. Then, after the Zeran v. AOL Fourth Circuit opinion in November 1997, it became clearer that Section 230 had reshaped the law of user-generated content. For more on the Zeran case, see this ebook.

Section 230 Left Open a Problematic “Copyright Hole.” Section 230 expressly excludes intellectual property claims based on third-party content. As a result, even after Section 230 passed, Internet services still faced potential secondary copyright liability with no statutory protection from Congress.

In particular, vicarious copyright infringement turns on a service’s “right and ability to control” the content on its servers, and plaintiffs can cite a service’s content moderation efforts–including those otherwise immunized by Section 230–as inculpatory evidence. In other words, Section 230 didn’t immediately legalize content moderation, because default copyright law still made those practices legally risky.

Two-plus years later, Congress partially plugged Section 230’s copyright hole in the Digital Millennium Copyright Act of 1998. In contrast to Section 230’s unconditional immunity for UGC, the DMCA created a notice-and-takedown liability scheme for user-caused copyright infringement. However, it took years for court cases to confirm that standard content moderation efforts didn’t increase services’ copyright liability for user-generated content.

Due to its unusual drafting and the legal context surrounding it, Section 230 didn’t definitively resolve the legitimacy of user-generated content and content moderation efforts when it passed in 1996. That implication took several more years to emerge.

For more on Section 230’s past, see Prof. Jeff Kosseff’s book, The 26 Words That Created the Internet. See also the 15-year retrospective event we held at SCU in 2011.

* * *

Section 230’s Present

Section 230 Offers Critical Procedural Benefits. Critics, politicians, and the media often focus their fire on Section 230’s substantive scope, such as how it compares to the First Amendment and whether it strikes the right policy balances. However, much of Section 230’s “magic” is procedural, not substantive. Section 230 provides courts with a helpful way of quickly dismissing unmeritorious cases. This, in turn, reduces defendants’ costs and increases their confidence of winning in court; and this further emboldens services to optimize their editorial policies for their audiences, engage in content moderation to effectuate those policies, and legally defend individual items of user-generated content. Even if the First Amendment dictated all of the same substantive outcomes as Section 230 (it doesn’t), Section 230 provides greater procedural predictability to the parties and thus achieves superior outcomes.

Section 230 Affects a Lot of Court Cases. According to the Shepard’s citation service, Section 230 has been cited in over 1,700 cases. As this figure indicates, citations keep going up:

Section 230 Discourages Many Lawsuits From Ever Being Filed. Section 230 has largely extinguished the genre of lawsuits against Internet services for their individual content moderation decisions. Without Section 230, every content moderation decision might prompt a lawsuit, manufacturing millions of potential lawsuits every day.

Section 230’s Drafters Future-Proofed the Law. Section 230 critics often highlight its adoption during the Internet’s infancy, as if that’s proof the law is not appropriate for the modern mid-2020s Internet. In 2020, Sen. Wyden and former Rep. Christopher Cox, the authors of Section 230, responded:

[Critics] assert that Section 230 was conceived as a way to protect an infant industry, and that it was written with the antiquated internet of the 1990s in mind – not the robust, ubiquitous internet we know today. As authors of the statute, we particularly wish to put this urban legend to rest…our legislative aim was to recognize the sheer implausibility of requiring each website to monitor all of the user-created content that crossed its portal each day…

The march of technology and the profusion of e-commerce business models over the last two decades represent precisely the kind of progress that Congress in 1996 hoped would follow from Section 230’s protections for speech on the internet and for the websites that host it. The increase in user-created content in the years since then is both a desired result of the certainty the law provides, and further reason that the law is needed more than ever in today’s environment.

* * *

Section 230’s Future

[TL;DR: 📉]

Congress Has Begun Chipping Away at Section 230. Congress has made two crucial reductions in Section 230’s scope in the past decade. In 2018, in FOSTA, Congress amended Section 230 to exclude immunity for commercial sex promotions. Then, last year, Congress passed the TAKE IT DOWN Act, which apparently overrides Section 230 to establish a notice-and-takedown scheme for intimate visual depictions.

Congress Could Repeal Section 230 at Any Moment. No politically powerful constituencies still publicly support Section 230. If a floor vote for a Section 230 repeal bill were scheduled in the House or Senate, I expect the repeal would pass by overwhelming margins.

Courts Are Repealing Section 230 Without Any Help From Congress. In 2024, in Anderson v. TikTok, the Third Circuit functionally repealed Section 230 in its circuit. The court said that any service that qualifies for First Amendment protections (which all online content publishers do) simultaneously cannot qualify for Section 230.

Separately, throughout the country, plaintiffs are pushing courts to hold websites liable for how they design their services because (they argue) such design choices are outside of Section 230’s scope. This argument is extremely problematic. A service’s “design choices” are synonymous with a publisher’s editorial decisions about how to gather, organize, and disseminate content. These are the kind of activities the First Amendment ought to protect. Further, for social media services that principally republish third-party content, “negligent design” claims could impose liability for that content–exactly what Section 230 should prevent. So long as courts are open to lawsuits over “design choices” and don’t apply Section 230 to those claims, plaintiffs will erode Section 230’s legal protections.

The Internet’s Future is Dire, Regardless of Section 230’s Fate. Fueled by the techlash, especially panics about children’s online usage, regulators are passing a tsunami of laws to regulate every aspect of how online publishers gather, organize, and disseminate content. Many of these laws are unconstitutional and violate Section 230, but legislators pay little heed to such concerns. Even if courts strike down most of these laws, the surviving laws will reshape how the Internet works.

In particular, legislatures are enacting laws that require online publishers to age-authenticate their users. These laws will have dramatic and universally negative consequences for the Internet, including raising publisher costs, shrinking publishers’ audiences, rewarding incumbents over startups, and creating massive privacy and security risks.

For these reasons, you should not assume that the Internet in 5 or 10 years will bear any resemblance to what we love most about the Internet today–no matter what Congress does to Section 230.

* * *

About the Author: Prof. Eric Goldman is Associate Dean for Research and Co-Director of the Datta Center for High Tech Law at Santa Clara University School of Law. He began practicing as an Internet lawyer, and teaching an Internet Law course, before Section 230 became law.

* * *

Want to read even more on Section 230? Check out some of my other articles on the topic:

• An Overview of the United States’ Section 230 Internet Immunity
• Why Section 230 Is Better Than the First Amendment
• Want to Kill Facebook and Google? Preserving Section 230 Is Your Best Hope
• Dear President Biden: You Should Save, Not Revoke, Section 230

* * *

Today is also the 30th anniversary of John Perry Barlow’s essay, “A Declaration of the Independence of Cyberspace,” his fever-dream response to the CDA’s passage. The opening paragraph is exquisite:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

This essay is a culturally significant artifact because it had a tremendous impact on the mid-1990s discussions about Internet exceptionalism–even though the essay was always misguided and naive and has aged poorly.

This article was originally published on the Technology & Marketing law blog. Republished here with permission.

Filed Under: big tech, free speech, open internet, section 230
Companies: aol

Rand Paul Only Wants Google To Be The Arbiter Of Truth When The Videos Are About Him

Content Moderation

from the your-own-bill-would-have-made-your-actions-illegal dept

Just a year and a half ago, Senator Rand Paul sponsored a bill that would make it illegal for federal government employees to ask internet companies to remove any speech. Now, in a NY Post op-ed, Paul proudly announces that he did exactly that—formally contacting Google executives to demand they remove a video he didn’t like.

The video apparently (falsely) claims Paul took money from Nicolas Maduro, the former Venezuelan President the US recently kidnapped. And Paul is furious that YouTube wouldn’t take it down for him.

But the straw that broke the camel’s back came this week when I notified Google executives that they were hosting a video of a woman posing as a newscaster posing in a fake news studio explaining that “Rand Paul is taking money from the Maduro regime.”

I’ve formally notified Google that this video is unsupported by facts, defames me, harasses me and now endangers my life.

Google responded that they don’t investigate the truth of accusations . . . and refused to take down the video.

Let’s pause here. Senator Paul—a sitting U.S. Senator—”formally notified” Google executives that they needed to remove content. Under his own proposed legislation, that would be illegal. His bill was explicitly designed to prevent government officials from pressuring platforms about speech. And yet here he is, doing exactly that.

This is also notably closer to actual government jawboning than most of what the Biden administration was accused of in the Murthy v. Missouri case—where the Supreme Court found no First Amendment violation because platforms felt free to say no. Paul, a Senator with legislative power over these companies, is “formally notifying” them of what he wants removed, and is now saying that Google’s refusal to do so means they should lose Section 230 protection. Remember, the “smoking gun” in the Murthy case was supposedly Biden officials (and Biden himself) threatening to remove Section 230 if the tech platforms didn’t remove content they didn’t like.

Rand Paul was furious about that and his bill was supposedly in direct response to the Murthy ruling, in which he wanted to make it clear that (1) no government official should ever demand content be taken down and (2) threatening to pass legislation to punish companies for their refusal to moderate content would also violate the law.

And here he’s doing both.

But it gets worse. Buried in the third-to-last paragraph of Paul’s op-ed is this remarkable admission:

Though Google refused to remove the defamatory content, the individual who posted the video finally took down the video under threat of legal penalty.

Wait. So the system worked exactly as designed? Paul threatened legal action against the person who actually created the content, and they took it down? That’s… that’s the whole point of Section 230. Liability attaches to the speaker, not the host. The creator is responsible. And when threatened with actual legal consequences, they removed the video.

So what, exactly, is Paul complaining about?!? He got the outcome he wanted through the mechanism that Section 230 preserved for him: the ability to bring legal action against the speaker. But instead of acknowledging that the law worked, he’s using this as his justification for destroying it.

Paul is a public figure. He has access to pretty much all the media he wants. If he wanted to use the famous “marketplace of ideas” he so frequently invokes to debunk a nonsense lie about him and Maduro, he was free to do that. If the video was actually defamatory, he could sue the creator—which he apparently threatened to do, and it worked! Instead, he wants to tear down the entire legal framework because YouTube wouldn’t do his bidding, even though the video was already taken down.

The Arbiter of Truth Hypocrisy

Here’s where Paul’s position becomes truly incoherent.

I asked one of Google’s executives what happens to the small town mayor whose enemies maliciously and without evidence, post that he is a pedophile on YouTube?. Would that be OK?

The executive responded that YouTube does not monitor their content for truth. But how would that small town mayor ever get his or her reputation back?

Just a few years ago, Rand Paul was apoplectic that YouTube tried to determine whether content—specifically about COVID-19—was true or not. He thought it was terrible that YouTube would dare to be the arbiter of truth, and he whined about it at length.

Now he’s demanding they be the arbiter of truth and remove one video because he says it’s false.

Paul even acknowledges this contradiction in his own op-ed, apparently without realizing it:

Interestingly, Google says it doesn’t assess the truth of the content it hosts, but throughout the pandemic they removed content that they perceived as untrue, such as skepticism toward vaccines, allegations that the pandemic originated in a Wuhan lab, and my assertion that cloth masks don’t prevent transmission.

Yes. And you screamed bloody murder about it. You insisted they should never do that. You built your entire position around the idea that platforms shouldn’t be deciding what’s true. And, with the re-election of Donald Trump, the big tech platforms all bent the knee and said they’d stop being arbiters of truth (even as it was legal for them to do so).

And so they stopped. And now you’re furious that they won’t make an exception for you.

Doesn’t that seem just a bit fucking hypocritical and entitled?

The “It’s Their Property” Problem

Paul’s real complaint—buried under all the high-minded rhetoric about defamation—is that Google makes its own decisions:

So, Google and YouTube not only choose to moderate speech they don’t like, but they also will remove speeches from the Senate floor despite such speeches being specifically protected by the Constitution.

Google’s defense of speech appears to be limited to defense of speech they agree with.

Yeah, dude. That’s how private property works. They get to decide what they host and what they don’t. That’s how it works. It’s also protected by their First Amendment rights. Compelled hosting or not hosting of speech you agree or disagree with is not a remedy available to you, Senator.

Paul continues:

Part of the liability protection granted internet platforms, section 230(c)(2), specifically allows companies the take down “harassing” content. This gives the companies wide leeway to take down defamatory content. Thus far, the companies have chosen to spend considerable time and money to take down content they politically disagree with yet leave content that is quite obviously defamatory. So Google does not have a blanket policy of refraining to evaluate truth. Google chooses to evaluate what it believes to be true when it is convenient and consistent with its own particular biases.

He says this as if it’s controversial. It’s not. It’s exactly how editorial discretion works. The company gets to make their own editorial decisions. You don’t have to like those decisions. But demanding they make different ones, and threatening to strip their legal protections if they don’t, is a government official using state power to coerce speech decisions.

You know, the thing Paul claimed to be against.

I think Google is, or should be, liable for hosting this defamatory video that accuses me of treason, at least from the point in time when Google was made aware of the defamation and danger.

Again: you already threatened the creator, and they took it down. The remedy worked. You used it successfully.

And if Paul’s standard is “Google becomes liable once made aware,” then anyone who wants content removed will just claim it’s defamatory and dangerous. How is this different from the COVID videos Paul was so mad they removed? People told Google those were false and dangerous, Google removed them, and Paul was furious that they acted after being “made aware” of allegedly false and dangerous content.

Now Google is doing exactly what Paul demanded—not removing content based on mere claims of falsity or danger—and he’s still mad at them.

The Section 230 Threat

So what’s Paul’s solution? Threaten to remove Section 230:

It is particularly galling that, even when informed of the death threats stemming from the unsubstantiated and defamatory allegations, Google refused to evaluate the truth of what it was hosting despite its widespread practice of evaluating and removing other content for perceived lack of truthfulness.

Remember when MAGA world insisted that Biden administration officials threatening platforms’ Section 230 protections was unconstitutional coercion? Remember how that was supposedly the worst violation of the First Amendment imaginable?

Rand Paul is now doing the same thing. A sitting Senator, using his platform and his legislative power, threatening to strip legal protections from a company because they won’t remove content he personally dislikes.

Paul literally told these platforms it wasn’t their job to determine truth or falsity. He literally sponsored a bill to prevent government officials from pressuring platforms about content. And now he’s doing exactly what he said was wrong—and threatening consequences if they don’t comply.

He didn’t “change his mind” on Section 230. He just revealed that he never had a principled position in the first place.

Paul supported Section 230 when he thought it meant platforms would leave up content he liked. He sponsored anti-jawboning legislation when he thought it would stop people he disagreed with from pressuring platforms. But the moment the system produces an outcome he doesn’t like—even though it worked exactly as designed and the video came down anyway—he’s ready to burn the whole thing down.

What is it with Senators and their thin skins? A few months ago we wrote about Senator Amy Klobuchar pressing for an obviously unconstitutional law against deepfakes after someone made an obviously fake satirical video about her. Now Paul joins the club: Senators who want to remake internet law because someone was mean to them online.

The video’s already down, Senator. You won. Maybe take the win instead of trying to burn down the open internet because Google wouldn’t do you a personal favor (the same favor you wanted to make illegal).

Filed Under: 1st amendment, defamation, editorial discretion, free speech, hypocrite, jawboning, liability, principles, rand paul, section 230
Companies: google, youtube

Marsha Blackburn Bundles Every Bad Tech Bill Into One, Slaps Trump’s Name On It

Policy

from the the-break-the-internet-for-trump-act dept

Fourteen years ago, right after the FCC issued its order on net neutrality, Marsha Blackburn flipped out and released a video talking (misleadingly!) about how wonderful Facebook and Twitter were and how they would be destroyed if the big evil government interfered in any way with the internet. As she says “there has never been a time when a consumer needed a federal bureaucrat to intervene…”

That Marsha Blackburn is long gone. Last week, she announced a massive, sweeping bit of federal intervention in the internet, officially labeled as the “TRUMP AMERICA AI Act”—except the actual bill title is:

The Republic Unifying Meritocratic Performance Advancing Machine Intelligence by Eliminating Regulatory Interstate Chaos Across American Industry Act (TRUMP AMERICA AI) Act

The acronym doesn’t work. You’ve got “The” included and “by” ignored, an “I” from “Intelligence” skipped, and “Act” appearing twice. It’s actually TRUMP AMIBERICA AIA Act if you follow the words. Clearly some staffer was told “make this spell TRUMP AMERICA AI Act” and fed it into Grok, got this “republic unifying meritocratic” nonsense, and no one checked because slapping Trump’s name on things is the whole point.

Which matters, because given that Blackburn named it after Trump, if it somehow catches Trump’s fancy, this thing might actually move. And the bill itself is a disaster—an omnibus massively destructive internet policy overhaul masquerading as AI legislation.

First off, the part that the bill’s name references is an attempt to have Congress pass the law that Trump asked Congress for in his recent AI executive order that pretended to ban states from passing AI laws. As we noted at the time, you need Congress to do that. An executive order doesn’t cut it. And even Republican governors like Florida’s Ron DeSantis and Utah’s Spencer Cox have both said “fuck no” when asked about this.

But, loyal Trumpist Blackburn is trying to have Congress block states from regulating AI. From her section-by-section explanation of the bill:

Preempt state laws and regulations related to the regulation of frontier AI developers related to the management of catastrophic risk.

But it would also do a lot of other stuff, including introducing a problematic “duty of care” on AI developers to “prevent and mitigate foreseeable harm to users.” This is one of those things that I’m sure sounds good to folks, but as we’ve explained over and over again this kind of “duty of care” is basically an anti-230 that would do real damage. It’s basically just an invitation for lawyers to sue any time anything bad happens and someone involved in the bad thing that happened somehow used an AI tool at some point.

And then you have to go through a big expensive legal process to explain “no, this thing was not because of AI” or whatever. It’s just a massive invitation to sue everyone, meaning that in the end you have just a few giant companies providing AI because they’ll be the only ones who can afford the lawsuits.

But there’s a whole lot more in the bill that has nothing to do with AI at all. It effectively repeals Section 230 by “reforming it” in a manner that flips the way 230 works. Rather than the “Good Samaritan” section that’s in there now, it will have a “Bad Samaritan” section, that would make providers potentially liable for “facilitating or soliciting third-party content that violates federal criminal law.” And, of course, some people will say that that’s fine, because you don’t want platforms doing that.

Two quick problems: one, Section 230 already exempts federal criminal law. It’s right there in section (e)(1). So to the extent this is supposedly about dealing with criminal behavior by platforms, you don’t need this change.

But the real problem is what this “Bad Samaritan” carve-out does to Section 230’s core function. Right now, 230 lets platforms get frivolous lawsuits dismissed quickly at the motion to dismiss stage. This change would force every platform to go through lengthy, expensive litigation to prove they weren’t “facilitating” (an incredibly vague term) or “soliciting” third-party content that violates federal criminal law.

That’s gutting the main reason Section 230 exists. Instead of quick dismissals, you get discovery, depositions, and trials, all while someone argues that because your algorithm showed someone a post, you were “facilitating” whatever criminal content they claim to find.

Next up; the bill effectively shoves KOSA into the bill. Blackburn’s been pushing KOSA forever. Remember, she wants KOSA to stop “the transgender in our culture.” KOSA keeps stalling out in Congress because it’s a really bad bill that would encourage tremendous online censorship, and sooner or later enough elected officials on both sides of the aisle realize “shit, this would be bad if the other side were in power.”

It also throws in the “NO FAKES Act” for funsies. If you don’t recall, the “NO FAKES” Act would mandate filters and scanning across the internet, destroy anonymous speech, and block a wide variety of useful innovations. For all the complaining MAGA has done about EU internet regulations, NO FAKES goes way beyond anything that the EU requires in terms of blatant censorship.

You know, the kind that Marsha Blackburn warned about, claiming Obama was coming for your internet and was going to suppress speech?

And that’s not all. The bill also has some nonsense requiring AI to undergo “audits” to make sure they’re not biased against conservatives. I only wish I were kidding.

Oh, and it completely upends copyright law in multiple concerning ways, effectively wiping out fair use, creating a new form of copyright infringement specifically for AI-generated works, giving the FTC a role in enforcing copyright law, and revamping how collective licensing works. This is, of course, a gift to the recording industry which has a large presence in her state of Tennessee.

Basically, this is an omnibus bill that would change nearly every US government policy regarding how the internet works, tackling AI, Section 230, copyright, and a bunch of other nonsense all in one bill. And Blackburn has cynically named it after Donald Trump hoping he’ll get on board and hound the MAGA folks in Congress to pass it.

So to recap: the Marsha Blackburn who said 14 years ago that “there has never been a time when a consumer needed a federal bureaucrat to intervene” has introduced a bill that would have federal bureaucrats intervene in basically every aspect of how the internet works: content moderation decisions, mandate bias audits, preempt state laws, require speech scanning across the internet, and fundamentally reshape how platforms, AI developers, and copyright holders operate online.

All (literally) in the name of Donald Trump. Because apparently when you need federal bureaucrats to intervene, what really matters is whose name is on the bill.

Filed Under: ai, donald trump, kosa, marsha blackburn, no fakes act, preemption, section 230, state laws

Senators Want To Hold The Open Internet Hostage, Demand Zuckerberg Write The Ransom Note

Legal Issues

from the who-has-time-for-all-this-nonsense? dept

Not this shit again.

A bipartisan group of the most anti-internet Senators around have released their latest version of a plan to “sunset Section 230.” We went over this last year when they floated the same idea: they have no actual plan for how to make sure the open internet can continue. Instead, their “plan” is to put a gun to the head of the open internet and say they’re going to shoot it… unless Meta gives them a different alternative. Let’s bring back Eric Goldman’s meme:

There is no plan for how to protect speech on the internet. There’s just hostage-taking. And remarkably, the hostage-takers are saying the quiet part out loud. Here’s Senator Dick Durbin’s comment on releasing this bill:

“Children are being exploited and abused because Big Tech consistently prioritizes profits over people. Enough is enough. Sunsetting Section 230 will force Big Tech to come to the table take ownership over the harms it has wrought. And if Big Tech doesn’t, this bill will open the courtroom to victims of its platforms. Parents have been begging Congress to step in, and it’s time we do so. I’m proud to partner with Senator Graham on this effort, and we will push for it to become law,” said Durbin.

Read that bolded part again. Durbin is admitting—in a press release, for the record—that he wants Big Tech to write internet policy. He’s threatening to blow up the legal framework that allows everyday people to speak online unless Mark Zuckerberg comes to his office and tells him what laws to pass. This is Congress openly abdicating its responsibility to govern in favor of letting a handful of tech CEOs do it instead.

The problem? The people who benefit from Section 230 aren’t the big tech CEOs. They’re you. They’re me. They’re every small forum, every Discord server, every newsletter with comments, every community space online where people can actually talk to each other without first getting permission from a building full of lawyers.

They want “big tech” to come to the table, even though (as we’ve explained over and over and over again) the damage from repealing 230 is not to “big tech.” Hell, Meta has been calling for the removal of Section 230 for years.

Why? Because Meta (unlike Durbin) knows exactly what every 230 expert has been saying for years: its main benefit has fuck all to do with “big tech” and is very much about protecting you, me, and the everyday users of the internet, creating smaller spaces where they can speak, interact, build community and more.

Repealing Section 230 doesn’t hurt Meta at all. Because if you get rid of Section 230, Meta can afford the lawsuits. They have a building full of lawyers they’re already paying. They can pay them to take on the various lawsuits and win. Why will they win? Because the First Amendment is what actually protects most of the speech these dipshit Senators are mad about.

But winning on First Amendment grounds probably costs between $2 million and $5 million. Winning on 230 grounds happens at an earlier stage with much less work, and probably costs $100k. A small company can survive a few $100k lawsuits. But a few $5 million lawsuits puts them out of business.

We already know this. We can see it with the DMCA, which was always weaker than Section 230. A decade and a half ago, Veoh was poised to be a big competitor to YouTube. But it got sued. It won the lawsuit… but went out of business anyway, because the legal fees killed it before it won. And now YouTube dominates the space.

When you weaken intermediary protection laws, you help the big tech providers.

Separately, notice Durbin’s phrasing about children being exploited. Can some reporter please ask Dick Durbin to explain how removing Section 230 protects children? He won’t be able to answer, because it won’t help. Or maybe he’ll punt to Senator Graham, whose press release at least attempts an answer:

“Giant social media platforms are unregulated, immune from lawsuits and are making billions of dollars in advertising revenue off some of the most unsavory content and criminal activity imaginable. It is past time to allow those who have been harmed by these behemoths to have their day in court,” said Graham.

Day in court… for what? Most “unsavory content” is constitutionally protected speech. The rap sheet is mostly First-Amendment activity—Section-230 just spares hosting it; repeal means litigating over legal speech, one plaintiff at a time.

As for criminal activity, well, that’s a law enforcement issue, not related to Section 230. If you don’t think that criminal activity is being properly policed online, maybe that’s something you should focus on?

Section 230 gives companies the freedom to make changes to protect children. That was the entire point of it. Literally, Chris Cox and Ron Wyden wanted a structure that would create incentives for platforms to be able to protect their users (including children!) without having to face legal liability for any little mistake.

If you take away Section 230, you actually tie the hands of companies trying to protect children. Because, now, every single thing they do to try to make their site safer opens them up to legal liability. That means you no longer have trust & safety or child safety experts making decisions about what’s best: you have lawyers. Lawyers who just want to protect companies from liability.

So, what will they do? They’ll do the thing that won’t protect children (which is risky), the thing that avoids liability, which tends to be to putting your head in the sand. Avoiding knowledge gets you out of these lawsuits, because under existing distributor liability concepts, knowledge is key to holding a distributor liable.

The only benefits to killing Section 230 are (1) to the biggest tech companies who wipe out competitors, (2) to the trial lawyers who plan to get rich suing the biggest tech companies, and (3) to Donald Trump, who can use the new rules to put even more pressure on the internet to suppress speech he doesn’t like.

I know for a fact that Senator Wyden has tried to explain this to his colleagues in the Senate, and they just refuse to listen.

This is exactly why BestNetTech needs your support. When the most powerful people in government are ignoring experts and pushing legislation based on lies, someone needs to keep explaining what’s actually happening. We’ve been doing that for over 25 years, and we’re going to keep doing it—but we need your help to make sure that continues.

Meanwhile, the actual users of the open internet—and the children Durbin claims to be protecting—come out worse off. Senator Durbin and his cosponsors (Senators Graham, Grassley, Whitehouse, Hawley, Klobuchar, Blackburn, Blumenthal, Moody, and Welch) know all this. They’ve been told all of this. Sometimes by Senator Wyden himself. But all of them (with the possible exception of Welch who I don’t know as much about) have a long and well-known history of simply hating the fact that the open internet exists.

The bill isn’t child protection, and it sure isn’t tech regulation. It’s a suicide pact drafted by people who’ve always despised an internet they don’t control. Zuckerberg gets handed the pen; we get handed the bill—and the bullet.

Filed Under: amy klobuchar, chuck grassley, dick durbin, josh hawley, lindsey graham, marsha blackburn, open internet, richard blumenthal, ron wyden, section 230, sheldon whitehouse, sunset

Section 230 Faces Repeal. Support The Coverage That’s Been Getting It Right All Along.

Techdirt

from the please-support-techdirt dept

Yesterday, Rep. Harriet Hageman released her bill to repeal Section 230. She’s calling it “reform,” but make no mistake—it’s a repeal, and I’ll explain why below. The law turns 30 in February, and there’s a very real chance this could be its last anniversary.

Which is why we’re running BestNetTech’s fundraising campaign right now, offering our very first commemorative coin for donations of at least $100 made before January 5th. That coin celebrates those 30 years of Section 230. But more importantly, your support funds the kind of coverage that can actually cut through the bullshit at a moment when it matters most.

Because here’s the thing: for nearly three decades, we’ve been one of the only sources to report fully and accurately on both how Section 230 works and why it’s so important. And right now, with a bipartisan coalition gunning to kill it based on myths and misinformation, that expertise is desperately needed.

Just in the last week or so on Bluesky I’ve posted two separate threads debunking some blatantly false narratives around Section 230 (one claiming that Section 230 means you’re not a publisher and another claiming that Section 230 is a “get out of jail free” card).

Section 230 remains one of the most misunderstood laws in America, even among the people in Congress trying to destroy it. Some of that confusion is deliberate—political expediency wrapped in talking points. But much of it has calcified into “common knowledge” that’s actively wrong. The “platform or publisher” distinction that doesn’t exist in the law. The idea that 230 protects illegal content. The claim that moderation choices forfeit your protections. All myths. All dangerous. All getting repeated by people who should know better.

So below, I’m highlighting some of our essential Section 230 coverage—not as a greatest hits compilation, but as a roadmap to understanding what’s actually at stake. If you believe in the open internet, you need Section 230. And if you need Section 230, you need someone who actually understands it fighting back against the tsunami of bullshit. That’s what you’re funding when you support BestNetTech.

Let’s start with the big one. Our most popular post ever on Section 230:

Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act

Five years later, this is still the single most useful thing you can hand someone who’s confidently wrong about Section 230. It systematically demolishes every major myth—the platform/publisher nonsense, the “neutrality” requirement that doesn’t exist, the “good faith” clause people misread, all of it—in a format designed to be shared. And people do share it, constantly, because the same wrong arguments keep recycling. Consider this your foundation.

Why Section 230 ‘Reform’ Effectively Means Section 230 Repeal

This is the piece that exposes the semantic game. Politicians love to say they’re not repealing 230, just “reforming” it. But as Cathy Gellis explains, nearly every reform proposal accomplishes the same thing: it forces websites into expensive, extended litigation to reach an outcome the law currently reaches in weeks. That’s not reform—it’s sabotage by procedure. The real benefit of 230 isn’t the outcome (most of these cases would eventually win on First Amendment grounds anyway), it’s that you get there for $100k instead of $5 million. Strip that away and you’ve effectively repealed the law for everyone except the richest companies. Which, spoiler alert, is exactly the point of most “reform” proposals.

Those Who Don’t Understand Section 230 Are Doomed To Repeal It

A near universal trait of those who show up with some crazy idea to “reform” Section 230 is that they don’t understand how the law works, despite the many explainers out there (and an entire book by Jeff Kosseff). And that’s why, as with Cathy’s article above, the advocates for reform lean in on the claim that they’re just “reforming” it when they’re actually leading to an effective repeal.

Everything You Know About Section 230 Is Wrong (But Why?)

Law professor James Boyle asks the more interesting question: why do smart people keep getting this so catastrophically wrong? His answer—cognitive biases, analogies to other areas of law that don’t actually apply, and the sheer difficulty of thinking clearly about speech policy—explains why the same bad ideas keep resurfacing despite being debunked repeatedly. Understanding the psychology of the confusion is almost as important as correcting it.

Your Problem Is Not With Section 230, But The 1st Amendment

So many complaints about Section 230 are actually complaints about the First Amendment in disguise. People angry that a website won’t remove certain speech often blame 230, but the reality is that the First Amendment likely protects that speech anyway. Prof. Jess Miers explains why killing 230 won’t magically enable the censorship people want—it’ll just make the process more expensive and unpredictable. Some people hear that and think “great, we can rely on the First Amendment alone then!” Which brings us to:

Why Section 230 Is Better Than The First Amendment

This is the piece that clicks it all into place. Prof. Eric Goldman’s paper explains that 230 isn’t an alternative to First Amendment protection—it’s a procedural shortcut to the same outcome. Without 230, most of these lawsuits would still eventually fail on First Amendment grounds. The difference is it would cost $3-5 million in legal fees to get there instead of $100k. That $100k vs $5 million gap is the difference between an ecosystem where small companies can exist and one where only giants survive. Anyone telling you we can just rely on the First Amendment either doesn’t understand this or is deliberately trying to consolidate the internet into a handful of megacorps.

NY Times Gets 230 Wrong Again; Misrepresenting History, Law, And The First Amendment

And now we get to the part where even the supposed experts fuck it up. The NY Times—the Paper of Record—has made the same basic factual error about Section 230 so many times they’ve had to run variations of this correction repeatedly:

If it feels like you can’t trust the mainstream media to accurately report on Section 230, you’re not wrong. And that’s why we do what we do at BestNetTech.

Has Wired Given Up On Fact Checking? Publishes Facts-Optional Screed Against Section 230 That Gets Almost Everything Wrong

Even the tech press—outlets that should know better—regularly faceplants on this stuff. This Wired piece was so aggressively wrong it read like parody. The value here is watching us dissect not just the errors, but how someone can write thousands of words about a law while fundamentally misunderstanding what it does.

Ex-Congressmen Pen The Most Ignorant, Incorrect, Confused, And Dangerous Attack On Section 230 I’ve Ever Seen

The title says it all. When former members of Congress—people who theoretically understand how laws work—produce something this catastrophically wrong, it reveals the scope of the problem. These aren’t random trolls; these are people with institutional credibility writing op-eds that influence policy. The danger here is that their ignorance carries weight.

Before Advocating To Repeal Section 230, It Helps To First Understand How It Works

The pattern is almost comical: someone decides 230 is bad, spends zero time understanding it, then announces a “solution” that would either accomplish nothing or catastrophically backfire. This piece is representative of dozens we’ve written, each time responding to a new flavor of the same fundamental confusion, like no other publication online.

No, Revoking Section 230 Would Not ‘Save Democracy’

People have assigned Section 230 almost mystical properties—that it’s the reason democracy is failing, or that repealing it would somehow fix polarization, or radicalization, or misinformation. The law does none of these things, good or bad. This piece dismantles the fantasy thinking that treats 230 like a magic wand.

Five Section 230 Cases That Made Online Communities Better

Amid all the doom-saying, it’s worth remembering what 230 actually enables. Jess Miers walks through five specific cases where the law protected communities, support groups, review sites, and services that improve people’s lives. Repealing 230 doesn’t just hurt Facebook—it destroys the ecosystem of smaller communities that depend on user-generated content.

Please support our continued reporting on Section 230

There are dozens more pieces in our archives, each responding to new variations of the same fundamental misunderstandings. We’ve been doing this for nearly three decades—long before it was politically fashionable to attack 230, and we’ll keep doing it as long as the law is under threat.

Because here’s what happens if we lose this fight: the internet consolidates into a handful of platforms big enough to survive the legal costs. Smaller communities die. Innovation gets strangled in the crib. And ironically, the problems people blame on 230—misinformation, radicalization, abuse—all get worse, because only the giants with the resources to over-moderate will survive, and they’ll moderate in whatever way keeps advertisers and governments happy, not in whatever way actually serves users.

That’s the stakes. Not whether Facebook thrives, but whether the next generation of internet services can even exist.

We’re committed to making sure policymakers, journalists, and anyone who cares about this stuff actually understand what they’re about to destroy. But we need support to keep doing it. If you agree that Section 230 matters, and that someone needs to keep telling the truth about it when even the NY Times can’t get basic facts right, support BestNetTech today. Consider a $230 donation and get our first commemorative coin, celebrating 30 years of a law that’s under existential threat and making sure it survives to see 31.

Filed Under: journalism, section 230
Companies: BestNetTech