Way back when AOL was a big tech company and people reached the World Wide Web via dial-up modems, Congress added a provision to federal law that has had a profound effect on every aspect of our democracy and public life.
It’s called Section 230 of the Communication Decency Act, and it ruled that internet platforms, or message boards as they then were largely called, are not legally liable for false or defamatory information posted by users.
Although no one could have imagined it at the time, the 1996 legislation made possible the explosive growth of the modern internet. Freed from the threat of being sued for libel, Facebook, Twitter, Reddit and other corners of cyberspace became places where literally billions of people felt free to say whatever they wanted, from robust political disputes to false accusations of horrific acts to the spread of disinformation and lies.
People often wrote actionable things about others but were seldom, if ever, sued personally for what they had said, the only recourse allowed under the new law. Also, individuals were less attractive targets for costly lawsuits than wealthy corporations.
The protection from legal liability proved essential to the explosive growth of the internet platforms, allowing them to remove posts that contained hate speech and other graphic material that might drive away users or advertisers. But at the same time, they did not have to read, research and “moderate,” in their terminology, every vituperative, spite-laced statement put on their sites by users.
Jeff Kosseff, a former reporter turned lawyer and legal scholar, has emerged as one of the leading experts on the 1996 law and is author of the aptly titled book “The Twenty-Six Words That Created the Internet.”
With a growing impetus for both political parties to do something to improve Section 230, I connected with Kosseff recently to get his thoughts. (Full disclosure: When I was a managing editor at the Oregonian back in the early aughts, he covered telecommunications for the paper and eventually became its Washington correspondent.)
For those of you not steeped in press and communications law, here are the 26 words. They’re not exactly felicitous.
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
How did you get into this seemingly obscure subject?
It’s funny. [Oregon Sen. Ron] Wyden was one of the people who wrote Section 230, but when I covered him on a daily basis for about five years, he never mentioned this to me. It wasn’t until I started practicing law: I would represent media companies that had mostly local news outlets, but would have user comments on their websites.
We would occasionally get complaints from people who wanted us to remove the user comments. And I quickly learned that I just needed to send them a one-page letter citing this thing called Section 230, and they would magically go away. I thought that was pretty remarkable, and I was just really intrigued by how we had something in the law that let me tell people to go buzz off.
Were there unexpected discoveries in your research?
The most surprising thing was that this law passed with almost no attention whatsoever. It was folded into the Telecommunications Act of 1996.
All of the media coverage at the time was about things like long-distance telephone competition, because that’s where the lobbyists were. Nobody really noticed that there was this liability protection [that] had been put in.
At the time, this was really about Prodigy and AOL, but no one really cared, because no one really thought very much about what the impact would be of making Prodigy immune from tort lawsuits. There was a little coverage of the fact that [Congress was] basically shielding companies from almost any liability whatsoever. It took quite a few years before people started to see what Section 230 actually did.
Could the platforms that we all know so well—Twitter, Facebook, Instagram, for starters—exist without Section 230?
No, they’d have looked very different without Section 230. Without it, they would either have to prescreen content, which would basically upend their business model, or, as the liberals would like, they would have to remove any user content as soon as they received a complaint. That would make it much more difficult to operate a site like Yelp, which relies on having negative user content that people that it’s about would want taken down.
In recent years, we’ve seen the dangers of conspiracy theories spreading unchecked across the internet, from QAnon to anti-vaxxers. There are voices that are saying: “Can’t we have a little more regulation here? Let’s tweak Section 230.” Do you think that’s possible? And what might it look like if Congress tried?