To answer that question, you have to go back to 1996 and what’s known as the “26 words that created the internet.” That was the year Congress passed the Communications Decency Act and its now-infamous Section 230 that states:
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.
That one sentence protects online forums from lawsuits related to anything posted on their sites because they are not considered publishers—sort of like bookstores or newsstands are not liable for the content they distribute. All big tech companies, from Google and Yahoo to Facebook and Twitter, rely on this law as a defense against charges of liable, negligence and defamation resulting from content posted by third party users. For the most part, Section 230 has effectively shielded the tech industry in court from potentially ruinous lawsuits and allowed them to moderate content as they see fit without much accountability. Sometimes referred to as the Magna Carta of cyberspace, Section 230 has also given American tech companies a substantial competitive advantage that has fostered their exponential growth.
But this “internet exceptionalism” enshrined in our legal code may soon change. Critics say the protections laid out in Section 230 have been interpreted too broadly and that big tech companies are taking advantage of the immunity provision. That legal shield has also come under scrutiny from politicians on the left and right as social media platforms have become conduits for conspiracy theories, hate speech, election interference and disinformation.
Just last month, the DOJ unveiled draft legislation to reform Section 230 and remove the immunity it grants platforms who don’t follow their own content moderation policies. “For too long Section 230 has provided a shield for online platforms to operate with impunity,” said Attorney General William Barr in a press release. “We, therefore, urge Congress to make these necessary reforms to Section 230 and begin to hold online platforms accountable both when they unlawfully censor speech and when they knowingly facilitate egregious criminal activity online.”
Supreme Court Justice Clarence Thomas has already weighed in and thinks lower courts have interpreted Section 230 too broadly. In an October 13 ruling, he seems to invite a case to revisit the scope of Section 230, stating, “Courts have departed from the most natural reading of the text by giving internet companies immunity for their own content.”
Those internet companies that have so indelibly shaped our information ecosystem are coming out full force against any changes to Section 230. They say they cannot exist without its protections and that any reforms could have profound consequences on how they—and the internet—function. Free speech advocates agree and say the internet as we know it would cease to exist without Section 230.
Jeff Kosseff, a former journalist who wrote a book about Section 230 and coined the phrase, “26 words that created the internet,” says tech companies need to be more accountable. “Something tech companies have really gotten wrong—they’ve proceeded for years basically treating Section 230 like it’s a right that’s enshrined in the Constitution, and I think, frankly, some of the large platforms, in particular, have gotten incredibly arrogant,” said Kosseff in a Wired article. “And now what you’re seeing is a backlash to that arrogance.”
That backlash has led to several bills now in Congress recommending changes to Section 230 that could make social media companies more accountable for spreading disinformation, but so far, there is no consensus on which proposal is best.