Jeff Kosseff wrote the book on Section 230, the law that gave us the internet we have today. He talks with ProPublica Editor-in-Chief Stephen Engelberg about how we got here and how we should regulate our way out. (Image via Shutterstock)
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?
ProPublica is a nonprofit newsroom that investigates abuses of power. This column was originally published in Not Shutting Up, a newsletter about the issues facing journalism and democracy. Sign up for it here.
9 Comments
Good article and very thoughtful. It’s refreshing to hear a view that acknowledges the negative and problematic consequences of requiring platforms to regulate everything that gets posted. Defamatory content- ok, but demanding that Facebook or Google be the grand decider of what’s true and what isn’t and what’s a politically acceptable opinion and what isn’t is a spooky proposition.
Interesting article. Not used to that from this website. John and Steve both have interesting points. Oddly enough when I look at my point of view it is obviously clear. LOL.
I don’t want tech “leaders” or tech companies dictating what information I can process. I don’t want them to tell me about the book depository and leave out the grassy knoll. I want to hear about UFOs and a Hollywood set of the moon landing. Moreover, I want to hear about election fraud and whatever is the equivalent in today’s world.
I don’t want to see beheadings, genocide or child porn, that’s for sure. But I don’t want government or big tech telling me what information I can obtain. That sounds a lot like communism.
Mr Anon, I am with you. If these platforms continue to enjoy protections from the publisher liability, then they should act like open platforms. If they want to be Random House, then be so, but their reach and market cap will be a fraction of what it is, as they will have to invest enormous amounts to control the beast they have conjured and content would be so limited, the advertising dollars would be pennies. Now they just get chumps to
create content for free and they sell to marketeers.
Instead, they eat have thier cake, eat it, and get to name the obiedent few who get to crawl on the ground to lick the crumbs they wipe off thier shirts. If you stray from the narrative which maintains thier market and political hegemon, you get cancelled. Yet the government protects them as a platform?
It is no surprise the anti-democratic Democrat Party, notably the DNC branch, is so enamoured with big tech and wall street (now essentially a Schrödinger’s cat) and you see so much cross-fertilization, and dark money passing, between them.
It is funny how these “resistance” fighters are so easily conned to be jack booted foot soldiers of the One Percenters. Any real leftie would see this BS for what it is, yet the progressive seem adamant to endless apologize and claim free markets, because it seems like its in their interest. Its not, the algo seems the Trump/AntiTrump opera as a profitable enterprise, if Trump resurgence was in thier interest in the future, youd see them singing a different tune. The beast must be feed, but thats all this is, an insatiable beadt. How Bay Area progs wont let themselves admit that is beyond me.
The “progressives” are the first to make the stupid boasts about the state’s GDP (since GDP per capita doesn’t merit boasting, and real-world poverty is tops in the US routinely) and the tech that developed largely before such politics infected government to the extent it does now, and are as degenerate as they are now, and like other business, persists despite, not because of, the politics. (when they’re not leaving for other states or thinking or planning to leave, that is)
“It is no surprise the anti-democratic Democrat Party, notably the DNC branch, is so enamoured with big tech and wall street (now essentially a Schrödinger’s cat) and you see so much cross-fertilization, and dark money passing, between them.”
IN-BREEDING. Tech already is well-established in Washington, DC, not only with lobbying, but with a presence before in the Obama administration and now in the Biden administration. This was in the news even before the election as well as after it.
So many locally dislike how tech has evolved and like San Francisco, no longer like it or find it interesting, but feel the opposite about it. (Many wouldn’t miss today’s tech if it left, and even want it to leave.) It affects the whole country as well as beyond, though. And given its morality, it’s right at home with the Dems.
We should have never passed Section 230 in the first place. The moment you start banning content then by definition you aren’t a neutral content provider.
That isn’t necessarily a bad thing. Just level the playing field so that Facebook, Google, et al. have to play by the same rules such as the print media.
Does anyone really believe that Facebook, for example, is banning commenters equally based on their terms of service? Or are conservative comments/commenters being banned out of all proportion, based on FB’s political leanings?
No need to answer that, the evidence is overwhelming that FB is selectively censoring free speech. And I use the term “censoring” deliberately because FB is doing exactly what its partner, big gov’t, would do if censorship wasn’t illegal.
The internet’s blog hosting giants have a tremendous first mover advantage, and they’re using it to keep competitors like Parler from competing. They enjoy a yuge advantage since the federal bureaucracy is onboard with what they’re doing.
At first they allowed free speech for everyone. But once the first movers got control of ≈98.9% of the available eyeballs they began to censor conservative speech, while continuing to publish even more extreme comments by the Left. They also enjoy pulling the plug on conservative blogs without prior warning. That leaves the censored blogs no effective way to tell their subscribers where they can be found next. That fact alone shows deliberate malice by the blog hosting giants — which have become self-appointed nannies. They alone decide what we’re allowed to see.
If it was simply a matter of competition there wouldn’t be a problem. But there is no credible alternative if a blog owner wants to increase traffic; they must use one of the established hosting platforms.
If the blog is liberal/Left, there’s no problem. But if a blog is conservative, it risks being censored out of existence (and “conservative” means the same thing to almost all conservatives: the belief that the original Constitution and Bill of Rights form the best template for government, and that subsequent laws have made things worse, not better.
Instead, the new Media Borg spins conservatives as skinheads, neo-Nazis, and other extremist labels. They do it to demonize conservatives, but it’s only psychological “projection” by extremists on the Left.
Finally, we should remember that the internet (formerly the World Wide Web) was created with the help of federal taxes, then it was given to everyone, gratis. But now that these internet giants control that resource, they’re using it to censor free speech — but only the speech of conservatives.
Good article and very thoughtful. It’s refreshing to hear a view that acknowledges the negative and problematic consequences of requiring platforms to regulate everything that gets posted. Defamatory content- ok, but demanding that Facebook or Google be the grand decider of what’s true and what isn’t and what’s a politically acceptable opinion and what isn’t is a spooky proposition.
Interesting article. Not used to that from this website. John and Steve both have interesting points. Oddly enough when I look at my point of view it is obviously clear. LOL.
I don’t want tech “leaders” or tech companies dictating what information I can process. I don’t want them to tell me about the book depository and leave out the grassy knoll. I want to hear about UFOs and a Hollywood set of the moon landing. Moreover, I want to hear about election fraud and whatever is the equivalent in today’s world.
I don’t want to see beheadings, genocide or child porn, that’s for sure. But I don’t want government or big tech telling me what information I can obtain. That sounds a lot like communism.
Mr Anon, I am with you. If these platforms continue to enjoy protections from the publisher liability, then they should act like open platforms. If they want to be Random House, then be so, but their reach and market cap will be a fraction of what it is, as they will have to invest enormous amounts to control the beast they have conjured and content would be so limited, the advertising dollars would be pennies. Now they just get chumps to
create content for free and they sell to marketeers.
Instead, they eat have thier cake, eat it, and get to name the obiedent few who get to crawl on the ground to lick the crumbs they wipe off thier shirts. If you stray from the narrative which maintains thier market and political hegemon, you get cancelled. Yet the government protects them as a platform?
It is no surprise the anti-democratic Democrat Party, notably the DNC branch, is so enamoured with big tech and wall street (now essentially a Schrödinger’s cat) and you see so much cross-fertilization, and dark money passing, between them.
It is funny how these “resistance” fighters are so easily conned to be jack booted foot soldiers of the One Percenters. Any real leftie would see this BS for what it is, yet the progressive seem adamant to endless apologize and claim free markets, because it seems like its in their interest. Its not, the algo seems the Trump/AntiTrump opera as a profitable enterprise, if Trump resurgence was in thier interest in the future, youd see them singing a different tune. The beast must be feed, but thats all this is, an insatiable beadt. How Bay Area progs wont let themselves admit that is beyond me.
Just get rid of Section 230. I just solved the problem.
The “progressives” are the first to make the stupid boasts about the state’s GDP (since GDP per capita doesn’t merit boasting, and real-world poverty is tops in the US routinely) and the tech that developed largely before such politics infected government to the extent it does now, and are as degenerate as they are now, and like other business, persists despite, not because of, the politics. (when they’re not leaving for other states or thinking or planning to leave, that is)
“It is no surprise the anti-democratic Democrat Party, notably the DNC branch, is so enamoured with big tech and wall street (now essentially a Schrödinger’s cat) and you see so much cross-fertilization, and dark money passing, between them.”
IN-BREEDING. Tech already is well-established in Washington, DC, not only with lobbying, but with a presence before in the Obama administration and now in the Biden administration. This was in the news even before the election as well as after it.
https://www.nytimes.com/2020/08/10/technology/big-tech-biden-campaign.html
https://www.reuters.com/article/usa-tech-biden-insight/big-techs-stealth-push-to-influence-the-biden-administration-idUSKBN28V170
So many locally dislike how tech has evolved and like San Francisco, no longer like it or find it interesting, but feel the opposite about it. (Many wouldn’t miss today’s tech if it left, and even want it to leave.) It affects the whole country as well as beyond, though. And given its morality, it’s right at home with the Dems.
We should have never passed Section 230 in the first place. The moment you start banning content then by definition you aren’t a neutral content provider.
That isn’t necessarily a bad thing. Just level the playing field so that Facebook, Google, et al. have to play by the same rules such as the print media.
Like I said before. Just get rid of Section 230 and I solved the problem.
Facebook, et al. have every right in my book to regulate content provided they take responsibility for everything that is published.
By definition, you can’t be neutral when you regulate content.
If someone slanders you in the New York Times then you can sue but if someone slanders you on Facebook then you can’t.
Doesn’t make sense to me.
Works for me.
Everyone should play by the same set of rules.
A private business certainly has the right to regulate content but then it is responsible for all the content that it produces.
Sounds pretty simple to me.
Does anyone really believe that Facebook, for example, is banning commenters equally based on their terms of service? Or are conservative comments/commenters being banned out of all proportion, based on FB’s political leanings?
No need to answer that, the evidence is overwhelming that FB is selectively censoring free speech. And I use the term “censoring” deliberately because FB is doing exactly what its partner, big gov’t, would do if censorship wasn’t illegal.
The internet’s blog hosting giants have a tremendous first mover advantage, and they’re using it to keep competitors like Parler from competing. They enjoy a yuge advantage since the federal bureaucracy is onboard with what they’re doing.
At first they allowed free speech for everyone. But once the first movers got control of ≈98.9% of the available eyeballs they began to censor conservative speech, while continuing to publish even more extreme comments by the Left. They also enjoy pulling the plug on conservative blogs without prior warning. That leaves the censored blogs no effective way to tell their subscribers where they can be found next. That fact alone shows deliberate malice by the blog hosting giants — which have become self-appointed nannies. They alone decide what we’re allowed to see.
If it was simply a matter of competition there wouldn’t be a problem. But there is no credible alternative if a blog owner wants to increase traffic; they must use one of the established hosting platforms.
If the blog is liberal/Left, there’s no problem. But if a blog is conservative, it risks being censored out of existence (and “conservative” means the same thing to almost all conservatives: the belief that the original Constitution and Bill of Rights form the best template for government, and that subsequent laws have made things worse, not better.
Instead, the new Media Borg spins conservatives as skinheads, neo-Nazis, and other extremist labels. They do it to demonize conservatives, but it’s only psychological “projection” by extremists on the Left.
Finally, we should remember that the internet (formerly the World Wide Web) was created with the help of federal taxes, then it was given to everyone, gratis. But now that these internet giants control that resource, they’re using it to censor free speech — but only the speech of conservatives.