Section 230

Much of the modern internet exists thanks to a short section of a 1996 US law dedicated to moderating online porn. Section 230’s reach extends beyond social media companies to any site that hosts user-generated content. Without the lae’s protections, all of these US-based platforms would be exposed to immense legal risk that would make hosting user content prohibitively expensive. Although other countries generally have stricter liability laws, the US has made it virtually impossible to go after web companies’ American assets.

For nearly a quarter of a century, internet companies have flourished behind this legal shield. But in recent years, the law has come under sustained attack from both US political parties. Everyone, seemingly, wants to repeal or roll back Section 230.

What will become of the internet’s foundational law?

26: Words in a crucial passage of Section 230 that “created the internet,” according to law professor Jeff Kosseff

$200 million: Damages sought by Stratton Oakmont—the scammy investment firm immortalized in The Wolf of Wall Street—in the defamation lawsuit that inspired lawmakers to pass Section 230

8-2: Winning record for internet companies defending themselves against lawsuits in the early days of Section 230, between 2001 and 2002

14-13: Not-so-winning record for internet companies defending themselves against lawsuits between 2015 and 2016, in the wake of a key court ruling that narrowed Section 230 protections

5: Separate bills proposed in Congress in 2020 to curtail Section 230 even further

224: Section 230’s lesser-known sibling, which regulates what sort of attachments companies can put on utility poles

Under US law, you can sue the publisher of certain kinds of content, but you can’t sue a distributor. Section 230 says websites like Facebook fall into the distributor category.

Before Section 230, it was unclear which category contained these platforms. In 1995, the New York Supreme Court ruled that if a website moderates user content, it should therefore be treated like a publisher. This ruling had consequences: From a legal standpoint, it was less risky to let users post any awful thing they wanted, because once you started moderating content you could get sued.

The following year, the Communications Decency Act, which contained Section 230, was enacted.

Even if you win a lawsuit against, say, Facebook in a German court, US law makes it impossible to recover any of the company’s American assets unless your lawsuit is compatible with Section 230.

1991: A New York district court rules that CompuServe, an internet service provider that ran an unmoderated message board, was not responsible for the defamatory content its users posted.

1995: An anonymous user accuses Stratton Oakmont of fraud on a message board hosted by Prodigy Services, which employs a team of moderators. The investment firm sues Prodigy, which was found legally liable for user posts because of their moderation practices.

1996: Congressmen Ron Wyden and Chris Cox insert Section 230 into the Communications Decency Act to make sure websites can moderate content without getting sued.

2018: Congress passes the Fight Online Sex Trafficking Act, which says Section 230 protections don’t apply when a website gets sued for hosting content related to sex trafficking.

May 26, 2020: Former US president Donald Trump falsely claims mail-in ballots are inherently fraudulent, prompting a fact check from Twitter.

May 28, 2020: Trump signs an executive order attempting to roll back Section 230. The order is toothless.

REVOKE 230!

—@realDonaldTrump’s reaction (on Twitter) to Twitter exercising its Section 230-guaranteed moderating power by fact-checking two of his false tweets

The law at the bedrock of the internet is deeply rooted in American anxieties about sex. When then-congressional representatives Ron Wyden and Chris Cox slipped Section 230 into the Communications Decency Act, it was part of an effort to make sure websites could block porn.

The law protects websites that restrict access to “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” content. The authors wrote that one of their motivations was to encourage the development of parental controls that would keep kids off porn sites. A former IBM lobbyist who worked to get Section 230 passed said most members of congress didn’t understand computers.

The 2018 Fight Online Sex Trafficking Act (FOSTA), which left companies liable for hosting content related to sex trafficking. But it also had the side effect of shutting down sites built for consensual sex work and dating, forcing many sex workers to revert to street prostitution.

Lawmakers from both US political parties are eager to curtail Section 230, be it to end what they claim (without evidence) is a campaign to censor conservative views, or to hold websites responsible for the disinformation that spreads on their platforms. Nobody can agree on how to do it.

The Verge’s Casey Newton has identified the two basic approaches for weakening Section 230. First, there’s the “carveout” approach, in which legislators make broad categories of content exempt from liability protections; FOSTA is the blueprint for this. The “bargaining chip” approach, which makes 230 protections contingent on complying with a government demand.

Facebook and Google were early supporters of the bill that eventually became FOSTA and Facebook CEO Mark Zuckerberg has called for more reform. A cynical read might suggest that the biggest Big Tech companies would gain an advantage over competitors who lack the resources to navigate the legal morass following Section 230’s repeal.

“If you don’t use the sword, there are going to be people coming for your shield.”

—Ron Wyden, who is now a US senator, arguing that websites have an obligation to do a better job moderating content in exchange for the liability protections they’ve been granted under Section 230

Still not sure what you can say on the internet? Try to figure it out for yourself.