Section 230 of the 1996 Communications Decency Act is one of this country’s most important protections for freedom of expression. It’s no stretch to say that one key sentence of the law amounts to “the 26 words that created the Internet,” a phrase coined by Jeff Kosseff, an assistant professor of cybersecurity law at the United States Naval Academy.
Section 230 holds that an online service that lets users post material is not considered the publisher or speaker of that material. This is a huge part of what makes social media possible. If someone libels you on Facebook, you can sue that person, not Facebook. It’s not Yelp’s fault if someone posts a negative restaurant review. And while Twitter is well within its rights to flag a tweet by President Trump for “glorifying violence,” as it did Friday, it is not legally liable for the times it has failed to prevent him from, among other things, insinuating without justification that a former congressman committed murder.
Advertisement
The Internet as it exists today is not necessarily the best possible one imaginable, however. Some reasonable updates to Section 230 are well worth considering, to more closely align the law’s outcomes with the original intentions of its authors. Such proposals have been getting a serious airing in Washington as both Republicans and Democrats question whether Section 230 gives tech companies a disproportionate amount of power.
But such progress is in danger of being undermined by President Trump. In a fit of pique after Twitter took the laudable step of fact-checking his tweets about voting by mail, Trump on Thursday signed an executive order intended to eviscerate Section 230. It’s an attempt to intimidate social media companies, based on a misrepresentation of what the law says and an egregious definition of what counts as “censorship.” Although it’s not clear that Trump’s attempt to regulate the social media platforms will hold up — it clearly falls to Congress, not the executive, to update a law on the books — he’s amplifying an enormous misunderstanding of the law, which could make real reforms harder to pass.
Advertisement
Section 230 was intended to give online services an incentive to promote civil discourse. Before the law was passed, the online service Prodigy was sued over an allegedly defamatory post that someone had written on a message board. Under the prevailing legal doctrine at the time, Prodigy was responsible, as if it were a newspaper publisher, because it had content guidelines and used screening software to moderate its posts. Had Prodigy taken an entirely hands-off approach, it might have been absolved of liability, because it could be considered a mere distributor of information, like a library or bookstore. In other words, Prodigy was better off not even trying to moderate posts.
That’s what Section 230 changed. It says that services like Prodigy and their descendants, which today include Google, Facebook, and Twitter, can make good-faith efforts to block posts containing libel, harassment, or obscene material without opening themselves to liability in the instances in which they fall short. The law was written as a “Good Samaritan” provision, akin to laws that protect you from liability if you try to assist someone injured in an accident.
The law has had some unfortunate consequences. Perhaps the biggest one is that courts generally have interpreted Section 230 as absolving Internet sites of any responsibility for defamation and harassment by their users, even if the companies don’t make good-faith efforts to stop it. A law meant to encourage sites to moderate content has instead become a legal justification not to. This has allowed sites with revenge porn and other harassing material to flourish. Because these sites have a chilling effect on the speech of the victims of such harassment, who typically are women, some legal scholars argue that tweaking Section 230 so that it rewards only truly Good Samaritans could make the Internet less brutal while also increasing freedom of expression. It wouldn’t be the first time the law was revisited: In 2017 Congress removed Section 230 protections for sites that facilitate sex trafficking.
Advertisement
Another problem is that the law is often misrepresented. Trump and other conservatives are guilty of this when they claim that if Google, Twitter, and Facebook remove or restrict access to users’ posts, they’re acting as publishers “engaged in editorial conduct.” Trump’s executive order says these sites are engaging in censorship and thus should forfeit Section 230 protections. That is an absurd interpretation of the law. On the contrary, Section 230 gives the providers of “interactive computer services” the freedom to restrict the availability of material that they consider "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Advertisement
The law is so confusing to Trump that he doesn’t even recognize how much it has benefited him. Without Section 230 protections, Twitter could have been legally vulnerable for all of the insults, defamation, and other dangerous nonsense Trump has spewed on its platform, and it likely would have stopped it long ago.
One of the voices calling for Section 230 reform is David Chavern, head of the News Media Alliance, an organization that includes The Boston Globe. Chavern argues that the immunity Internet companies enjoy under Section 230 amounts to a subsidy that disadvantages providers of reputable, well-researched content. But Chavern says Trump’s executive order is the wrong approach, given that it carries “the risk of deeply politicizing an important issue of Internet governance.”
Indeed, whether and how to update Section 230 is a debate that belongs in Congress, where critics and defenders of the law can strike a balance that the president is ill-equipped to pull off.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.