Section 230 of the Communications Decency Act, a two-decade old law is a poor fit with the digital world of today. Bills pending in the Senate and House of Representatives would amend section 230. Now careful decisions have to be made about the responsibility of Internet platforms. That the biggest platforms have blocked bad actors or refused to advertise with them shows that they acknowledge this responsibility.
A two-decade old law is a poor fit with the digital world of today To read section 230 of the Communications Decency Act is to travel back to a simpler time. Written into US law in 1996, it was designed to protect internet companies from being sued out of existence for the behaviour of their users. “The internet and other interactive computer services offer a forum for a true diversity of political discourse [and] intellectual activity,” it says. “The vibrant and competitive free market that currently exists for the internet” must be preserved. The geeky utopians of the 1990s may not have reckoned, however, on the widespread use of the internet to facilitate crime and terror; or on the way it serves to narrow minds by creating of information bubbles; or on the way its economic and intellectual activity has come to be dominated by a few huge, wildly profitable intermediaries. Those facts haunt section 230 because of one crucial sentence in the law: “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.” This provides — or rather, has been interpreted as providing — internet platforms with blanket protection from responsibility for content that appears on their sites, and indeed the offline criminal activities those sites facilitate. Bills pending in the Senate and House of Representatives would amend section 230. They would specify that the law should not override enforcement of human trafficking laws, expand the wording of those laws, and would remove protection from civil or state-level prosecution. Interpreted broadly, section 230 goes too far. Yes, it would be mad to prosecute a network provider for transmitting an email that was part of a criminal conspiracy. But platforms that sell advertising alongside user-created content, profiting from it, take on some responsibility for it. And a platform designed specifically to make criminal activity harder to prosecute is a co-conspirator. That the biggest platforms have blocked bad actors or refused to advertise with them shows that they acknowledge this responsibility. Are the bills in Congress the best way to tighten the interpretation of section 230? They respond in large part to the activities of Backpage.com, a site notorious for facilitating sex trafficking. Big platform companies and internet libertarians have objected that the bills’ wording is too broad and will open the way to frivolous lawsuits, that they only go after “one bad actor” and that in any case section 230 never protected internet companies from federal (as opposed to state and civil) prosecution. Google argues that the law will prevent companies from co-operating with the authorities, for fear of prosecution. There may be important elements of truth in these arguments. There is, however, a broader principle at stake. It is clear that Google, Facebook, Twitter and a few others have become an important part of the social fabric. The dissemination of fake political news around elections in the US and Europe has illustrated as much. It is also true that they are, to various degrees, natural monopolies. Outraged consumers cannot easily switch to other products. So careful decisions have to be made about the responsibilities of internet platforms. The question is how to make them. The internet industry insists that those decision should be made inside internet companies; anything else would be a threat to the internet itself. But the internet has grown up since 1996. It is no longer fragile and is much more centralised. The time is right for a public discussion about the responsibilities of these companies and how they should be held accountable.