Internet under fire: Will Section 230 live to see another birthday? – News

It’s only 26 words in a 60,000-word act, but Section 230 has proven to be one of the most significant, and controversial, pieces of law ever passed in the United States.

Contained in the Communications Decency Act of 1996, Section 230 was originally designed to protect social media platforms and other websites from legal liability based on content posted by users. It has been referred to by many as “the 26 words that created the internet” because Section 230 paved the way for online freedom of expression and a trillion-dollar industry of companies seeking to facilitate that.

Yet Section 230 also remains a lightning rod for concerns over privacy, mental health and censorship. As the landmark law marks its 30th birthday this month, there are open questions from legal experts and tech leaders about whether Section 230 as envisioned by its Congressional authors will survive.

“I really think today that the spirit of Section 230 is dead,” said Jess Miers, assistant professor at the University of Akron School of Law. “It was supposed to give us a guarantee, a federal guarantee to all developers, all websites. It was supposed to be a sure guarantee that if you were to host third party content, engage with third-party content, you would be protected by Section 230. I cannot say with a straight face that guarantee exists today.”

Support for startups

Miers spoke during a Thursday symposium on Section 230 hosted by the Cato Institute in Washington D.C. The event included a virtual appearance by Senator Ron Wyden who, along with former Congressman Chris Cox, wrote the words at the heart of today’s debate.

Wyden reminisced about what prompted him and Cox to insert Section 230 into the Communications Act. As Wyden recalled, his colleagues in the Senate were passing around examples of indecent material that was beginning to appear on the internet in the mid-1990s, yet there was no clear plan for how to address it. It was a “crummy choice,” according to Wyden, between policing everything or policing nothing.

“Chris and I saw that they didn’t have a proposal that would help the internet,” Wyden said. “We wanted to fix the moderator’s dilemma.”

That fix, which became Section 230, was based on a sincere interest in protecting nascent companies that were beginning to explore new business opportunities on the web. “What Chris and I were interested in was protecting startups,” Wyden recalled. “The big guys can always take care of themselves. We were for the little guys.”

Debate over AI protection

While Wyden’s intent was to protect startups in 1996, he has now found himself facing a new problem 30 years later with the rise of artificial intelligence. The senator is not inclined to protect AI startups this time around.

“Section 230 should not protect AI companies over claims about the content they generate,” Wyden told the Cato Institute gathering. “That’s not what 230 is all about.”

This position has led some to wonder if Congress fully understands the dynamics shaping AI today. As Miers noted during a panel discussion, AI ranks and sorts content, curates third-party databases and edits without changing the underlying meaning.

“Those are classically protected activities under Section 230,” Miers said. “If we just arrive at the blanket case that Section 230 does not apply to generative AI, then I think all of those activities start to fall out the window.”

The first major ruling on the liability of AI platforms may come later this year. In Raine vs. OpenAI, a wrongful death lawsuit filed in August in California Superior Court, the case hinges on whether enablement from ChatGPT led to the suicide of a 16-year-old child.

DMCA ‘takedown’ abuse

Section 230 is also under scrutiny over abuse related to copyright infringement protections. It has been paired with Section 512 of the Digital Millennium Copyright Act or DMCA to protect websites against copyright infringement claims from the posting of third-party content.

The problem is that DMCA has also been used to remove legitimate content as part of online reputation management. The DMCA “takedown” process has affected a number of news organizations, including News, that have scrambled to reinstate previously published stories.

“The takedown system that has been created is being abused by those who have more money and more power,” Ashkhen Kazaryan, senior legal fellow for The Future of Free Speech at Vanderbilt University, said Thursday. “We as a society have not caught up with the volume and change that the internet has created for us.”

Questions are also being raised around Section 230’s protection of content that may lead to physical harassment or harm. One study discovered that more than half of U.S. appellate court judges were found to have their personal data, including home addresses, phone numbers and names of relatives, posted online.

Findings such as these highlight the risks facing the nation’s judges as they are increasingly targeted by doxxing and threats of retaliation for rulings.

“Is it OK to put the judge’s address out there, his home address?” said Gary Shapiro, executive chair and chief executive of the Consumer Technology Association. “At what point do you draw a line? I wish there was a way, private or otherwise, that people could address legitimate concerns. This isn’t all good, folks.”

Repeal efforts underway

Bills have been introduced in the current Congress that would repeal or sunset Section 230. The “PROTECT Act” introduced by Congressman Jimmy Patronis would immediately repeal the section of the Communications Decency Act. The “Sunset Section 230 Act” that has been introduced by U.S. Senators Dick Durbin and Lindsey Graham, would repeal Section 230 two years after the date of enactment.

Law professor Jess Miers spoke about the dangers facing Section 230.

“Our current government sees Section 230 as a mistake, a mistake they never want to make again,” said law professor Miers.

Social media platforms such as Reddit Inc. have raised concerns about the impact that a repeal of Section 230 could have on users and the internet. Reddit uses community moderators and Section 230 empowers them to remove content that violates behavioral rules.

Rather than throwing Section 230 out completely, Congress should identify specific online concerns and assess the best ways to protect affected populations, according to Billy Easley, lead public policy manager at Reddit.

“Don’t take the sledgehammer of 230 repeal when a scalpel will suffice on these issues,” Easley said.

That a law crafted in 1996 to govern the internet has lasted three decades may itself be a remarkable occurrence. No one can deny it’s a different world now and the drumbeat of change for the legal protections surrounding Section 230 is getting louder with every passing day.

“I love Section 230, I love the internet,” said Miers, who has “§230” tattooed on the inside of her left wrist. “I am terrified of where things are headed.”

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