A decades-old law shields social media companies such as Facebook and Twitter from lawsuits over content their users post on their platforms. Now it’s under attack as lawmakers look to hold social media platforms accountable.
Democrats and Republicans on Capitol Hill generally agree that changes need to be made to Section 230, a provision in the Communications Decency Act that gives legal protections to social media companies.
Calls for reform have taken on new urgency as social media companies battle a flood of misinformation on their sites, which include disinformation about the coronavirus vaccines, the outcome of the US presidential election and the deadly attack on the US Capitol in January. Extremist content and conspiracy theories posted on social media platforms have turned into real world violence. In spite of the companies’ efforts to address these concerns, lawmakers on Thursday during yet another Congressional hearing featuring CEOs from Facebook, Google and Twitter expressed frustration that it’s not enough.
“Today our laws give these companies a blank check to do nothing rather than limit the spread of disinformation,” said the chairman of the House Energy and Commerce Committee, Rep. Frank Pallone, a Democrat from New Jersey.
As the influence and size of companies like Google, Twitter and Facebook have grown, lawmakers say more regulation is needed to rein in their power.
“This panel has done something truly rare in Washington these days — it’s united Democrats and Republicans,” Rep. Angie Craig, a Democrat from Minnesota said during the hearing, which lasted more than five hours. “Your industry cannot be trusted to regulate itself.”
The focus on Section 230 reform has many tech advocates, including public interest groups, such as Fight for the Future and the Electronic Frontier Foundation, that have been critical of tech giants, concerned that laws limiting or changing the scope of Section 230 protections could have unintended consequences for innovation on the internet and free speech online.
But getting consensus on how to reform Section 230 will likely prove difficult, a problem that even Facebook CEO Mark Zuckerberg acknowledged in his opening statement.
“I believe that Section 230 would benefit from thoughtful changes to make it work better for people,” he said in the statement. “But identifying a way forward is challenging given the chorus of people arguing — sometimes for contradictory reasons — that the law is doing more harm than good.”
Republicans have widely called for the reform or repeal of the law because of their perceptions the Silicon Valley powerhouses are biased against conservative views and work to censor conservatives, like President Donald Trump, while giving liberal politicians a pass.
Democrats agree that reforms are needed, but they see the problem differently, arguing Section 230 prevents social media companies from doing more to moderate their platforms, such as taking down or limiting hate speech and disinformation about COVID-19.
Tech companies say Section 230 protections, which shield them from liability for their users’ posts and also let them moderate harmful content without facing repercussions, allowed online platforms to flourish in the early days of the internet.
Here’s what you need to know about the government’s potential role in regulating social media:
What is Section 230?
Section 230 is a provision of the 1996 Communications Decency Act. A number of tech industry observers say it’s the most important law protecting free expression online.
The provision essentially protects companies that host user-created content from lawsuits over posts on their services. The law shields not only internet service providers, like AT&T, Comcast and Verizon, but also social media platforms, like Facebook, Twitter and Google.
Section 230 isn’t blanket protection. There are exceptions for federal crimes or intellectual property claims. A company could still be held accountable if it knowingly allowed users to post illegal content.
The law provides social media companies with sweeping protections that let them choose what content they restrict, and how. This means social media platforms can’t be sued for taking down content or leaving it up.
Why did lawmakers think this was a good idea?
By eliminating liability risk, Section 230 has allowed companies to experiment. Without it, Twitter and Facebook almost assuredly wouldn’t exist, at least not as they do now. And it isn’t just big companies that gain from the law. Nonprofits have benefited too.
“Without Section 230, we’d have no Wikipedia,” said Ernesto Falcon, senior legislative counsel for the Electronic Frontier Foundation, referring to the volunteer-maintained online encyclopedia.
Many experts say the law has enabled the internet to develop into a medium that allows ideas and political discourse to flow freely. Section 230 allowed online communities to experiment with content moderation, Falcon said. Without these protections, companies might not bother with moderation, he says, which would likely lead to even more offensive, false or misleading content online.
OK. So what are the problems with Section 230?
Most of the problems around Section 230 involve which posts social networks allow to stand and which ones they remove. The rancor around those decisions has prompted some politicians to call for the provision to be repealed or altered.
Democrats are most concerned about getting big social media companies to take down hate speech, harassment, disinformation and terrorism-related content. Democrats have even gone so far as to accuse the companies of using the liability protections of Section 230 as a means to profit from the lies spread on their platforms.
“You definitely give the impression that you don’t think that you’re actively, in any way, promoting this misinformation and extremism, and I totally disagree with that. You’re not passive bystanders,” Chairman Pallone said during the hearing Thursday. “You’re making money.”
Republicans allege social media companies censor conservative viewpoints.
“We’re all aware of Big Tech’s ever-increasing censorship of conservative voices and their commitment to serve the radical progressive agenda,” said Bob Latta, the ranking Republican of the House’s subcommittee on technology.
“Section 230 provides you with the liability protection for content moderation decisions made in good faith,” Latta said. But he added that the companies use that moderating power to censor political views they disagree with. “I find that highly concerning.”
This is a narrative that former President Trump used in the lead up to the 2020 presidential election when Twitter and Facebook began slapping warning labels on his posts for containing inaccurate information. After the election, Trump used social media to falsely claim victory. Following the deadly attack on the Capitol, Twitter, Facebook and other social media platforms banned him.
President Joe Biden when he was a candidate for president, argued that social media companies don’t deserve protection because they knowingly allow false information on their platforms.
In an interview with The New York Times editorial board in January 2020, Biden called for Section 230 to be “immediately” revoked. “It is propagating falsehoods they know to be false,” Biden said, “and we should be setting standards not unlike the Europeans are doing relative to privacy.” (Biden was referring to the EU’s General Data Protection Regulation, a sweeping privacy law.)
How is Congress proposing to fix these issues?
As the rhetoric around Section 230 has heated up, lawmakers on both sides of the political aisle have introduced a flurry of legislation over the past year. Seven bills have already been introduced in the first three months of this year, according to Future Tense, a partnership of Slate, New America, and Arizona State University that has been tracking legislation on this issue.
These bills address reforms in various ways. Some call for liability protections to go away entirely, others alter or refine it. There are bills that limit the scope of Section 230 by restricting types of activities protected under the law. For example, a bill might prohibit companies from using Section 230 as defense under certain conditions, such as in cases of child sexual exploitation, civil rights violations or in terrorism cases.
Other bills strip liability protections entirely and would have companies earn those protections by showing they are politically neutral in how they moderate content.
But the fact that there are so many bills that have been introduced some of which overlap in scope, and some of which are vastly different in approach, is a good indication that there is no easy fix to this issue.
Where do the executives of the big companies, Facebook, Google and Twitter stand on regulation?
Facebook CEO Mark Zuckerberg has expressed support for changing Section 230. In prepared remarks, Zuckerberg said during the hearing that online platforms should “be required to demonstrate that they have systems in place for identifying unlawful content and removing it,” but that they shouldn’t be held liable if a piece of content evades their detection. He also noted that lawmakers would need to be careful about limiting the requirements to large online companies, so as not to penalize or burden startups.
Google CEO Sundar Pichai has said he has concerns about changing or repealing the law, noting during the most recent hearing that there could be unintended consequences that make content moderation tougher or that harm free expression. When asked if he supported Zuckerberg’s proposed changes, he said there are “definitely good proposals around transparency and accountability” the company would welcome.
Twitter CEO Jack Dorsey echoed Pichai’s sentiments. He said that Facebook’s proposal for more transparency is “good,” but he added “it’s going to be very hard to determine what’s a large platform and a small platform.”
What do tech advocates think of these reforms?
Groups such as the Electronic Frontier Foundation and Fight of the Future have argued that trying to fix the many concerns and issues people have with social media companies through repeals or changes to liability protections will do more harm than good. Instead, they say Congress should address these concerns by enforcing antitrust or enacting comprehensive privacy laws.
Removing liability protections “would lead to more censorship as social media companies seek to minimize their own legal risk,” EFF stated in a blog discussing the Senate’s SAFE Tech Act, introduced earlier this year by Democrats Sens. Mark Warner of Virginia, Amy Klobuchar of Minnesota and Mazie Hirono of Hawaii.
“The act would not protect users’ rights in a way that is substantially better than current law,” EFF continued. “And it would, in some cases, harm marginalized users, small companies, and the Internet ecosystem as a whole.”
Fight the Future also fears that changes to Section 230 protections would harm the smallest companies, because these companies would not be able to afford the cost of battling an onslaught of lawsuits. Meanwhile larger players, like Facebook, which already have a vast legal department, would be unaffected financially battling lawsuits.
Evan Greer, director of Fight for the Future, said that it’s little surprise that Facebook supports changes to Section 230 since changes to the law could benefit the company.
“Zuckerberg’s support for changes to Section 230 is about maintaining Facebook’s dominance and monopoly control, nothing more,” Greer said. “Instead of helping Facebook by gutting Section 230, lawmakers should take actual steps to address the harms of Big Tech, like passing strong Federal data privacy legislation, enforcing anti-trust laws, and targeting harmful business practices like microtargeting and nontransparent algorithmic manipulation.”
Didn’t former President Trump issue an executive order directing the FCC to write regulation on Section 230?
Yes. Trump heightened the debate over Section 230 during his presidency when in May 2020, he issued an executive order directing the Federal Communications Commission to establish regulations that clarify the parameters of the good faith effort that Section 230 requires online companies make when deciding whether to delete or modify content. At the heart of Trump’s executive order was the claim that social media sites censor conservative viewpoints they disagree with.
Does the FCC have any authority to make rules limiting Section 230?
That was the big question. The FCC’s top lawyer said it did. But Democrats and watchdog groups, such as Public Knowledge, said that the FCC does not have the authority to impose these regulations.
Then the election happened. Trump lost. Biden won, and Trump’s FCC’s Chairman Ajit Pai did not pursue writing new regulation.
So, what’s next?
It’s clear from the most recent Congressional hearing and the stream of new legislation seeking to reform Section 230 that lawmakers are ready to do something. But exactly what reform will look like is unclear. There is at least one bipartisan bill in the Senate. Earlier this month, Sens Brian Schatz, a Democrat from Hawaii and John Thune, a Republican from South Dakota reintroduced the Platform Accountability and Consumer Transparency (PACT) Act, that would make platforms’ content moderation practices more transparent and hold those companies accountable for content that violates their own policies or is illegal.