A Retrospective Assessment of Section 230
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In its current form, section 230 of the Communications Decency Act was introduced by the United States Congress in 1996. One of its principal aims is safeguarding free speech in online settings. However, 2020 has seen a rise in criticism directed towards the law. Today, many find it to be out-dated and in need of amendments to accommodate for the technological advancements of the 21st century.
The provisions have been subject to particular scrutiny by Democrats and Republicans. Section 230(c)(1), refers to the ‘treatment of publisher or speaker’. It detaches liability from tech businesses and protects them from lawsuits for the publication of unacceptable content on their platforms. Equally, Section 230(c)(2)(A) provides companies with a right to engage and amend content in ‘good faith’.
Trump’s efforts against Section 230
Throughout his time in office, President Trump has been one of the biggest critics of Section 230.
He has accused the law of permitting biased publications while removing right-wing content. Roger Wicker, a Republican Senator, has branded the activity as “censorship and suppression of conservative voices”.
President Trump’s most prominent attempt at hindering the 1996 provisions was signing the executive order in May 2020. His actions were a direct response to Twitter’s placement of a fact-checking warning upon one of his tweets. The order sought to acquire an interpretation limiting the scope of Section 230, by the Federal Communications Commission. In October 2020, FCC Chairman Ajit Pai announced his intentions to proceed with the rulemaking process regarding Section 230. However, his upcoming departure from the FCC in January 2021 and the introduction of Joe Biden’s administration are expected to relocate the responsibilities of establishing any significant changes of the law to Congress.
December 2020 saw President Trump execute another attempt at revoking Section 230 by vetoing the $740 National Defence Authorization Act. The bill was predominantly concerned with allocating military spending, but the President called for an amendment to the proposal that would dismiss Section 230. He manifested his reasoning by stating that the bill “fails to include critical national security measures”.
Democrats have also recently addressed the unsuitability of Section 230. President-elect Joe Biden advocates taking “away the exemption…for knowingly engaging in promoting something that is not true”. Nonetheless, Sen. Ron Wyden, a Democratic co-creator of the text, defended the wording of the Act by stating that it allowed technology firms to focus on expansion rather than worry “about how they had to hire a team of lawyers” to handle any liability they would be subject to.
Concerns over the repeal of Section 230
Alongside providing tech firms with immunity, the law was designed to protect free speech on the Internet. Susan Ness, a former FCC Commissioner, has warned against amendment attempts which may result in a ‘dramatic and negative impact on freedom of expression’.
Mark Zuckerberg has voiced further concerns, finding that ‘without Section 230, platforms could potentially be held liable for everything people say’. Indeed, companies such as TripAdvisor rely on Section 230, as they encourage honest and occasionally unfavourable comments from their users. Eliminating Section 230 could see every negative comment be subject to a lawsuit.
On the 28th October 2020, a Congress hearing was dedicated to the assessment of Section 230. Unsurprisingly, Big Tech CEOs defended the law. However, Mark Zuckerberg has followed the overall consensus of 2020, voicing his support for updating the law to ensure “it’s working as intended”. Jack Dorsey, the CEO of Twitter, has also acknowledged that transparency should be elevated.
Despite several attempts at restricting Section 230, the controversial law has been sustained across 2020, conserving the provisions introduced in 1996.
By: Zuzanna Potocka