26 Words Created the Internet. What Will It Take to Save It?

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.

6 Comments

  1. 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.

  2. John,

    Remember Prodigy got in major trouble for allowing it to be used like this.

    So Facebook, Google, and any other “moderated” forum, even this one, is liable for a number of things including defamation, and if violence is identified due to postings here too.

    Remember a “political opinion” cannot contain “fighting words” or “incitement”, or easily be proven to be “false”, any of these circumstances in effect removes Section 230 protection under the laws.

    So they have good cause to put “terms of use” into their contracts, thus enabling them to have further protection from being dragged into a law suit or even a criminal proceeding.

    Until the laws prohibit the “terms of use” as demonstrated here, section 230 in contracts in effect is a non-issue. Please look at Parler versus Amazon Web Services as a case example?

  3. 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.

  4. JUST ANON FOR NOW,

    I am a TRUE conservative and I agree with your arguments except for 3 factors.

    The First Factor. In the 1980s the Regan Administration killed the EQUAL TIME requirements regarding news and advertising regarding politics with the Federal Communications Commission. Given that ANY attempt to have governmental regulations on the Internet would have to be regulated by the FCC. Are you suggesting we RESTORE that doctrine, because you will need to, to enforce it on a PRIVATE companies equipment and resources.

    The Second Factor. The attempt to force the PRIVATE companies’ resources will require that those resources be PAID for by the government because you are in fact suggesting Emanate Domain on the equipment, because the “OWNERSHIP” of the equipment gives the owners the right to determine the contract conditions. If the government decides to take them over “ironically a communist act” they are simply not OWNED by the private companies anymore. This is not like taking over land, because ownership on the equipment, software, and trade algorithms are not “taxed” like a property is.

    The Third factor is that there are no “barriers” either in the “market” or the “government” regarding anyone to be able to build their own data centers, providing alternate Internet services, and having domain over that content. BUT if you want to use say Google Cloud Services, Amazon Web Services, or Microsoft’s Cloud Systems, they OWN their infrastructure and can determine any “terms of use” they want. But you can always get your own investors, buy your own equipment, install your own software and algorithms, and manage and operate them yourselves, right?

  5. 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.

  6. SJ Kulak,

    Again, if you want a “free speech” platform, BUILD it.

    But do not expect anyone to “sell” you the use of equipment that DOES NOT BELONG TO YOU.

    Again this is why Amazon won against Parler, Parler did NOT own the AWS system, only “leased” it under contract with explicit conditions they knew they were going to violate.

    NO ONE is saying you CANNOT put up a platform, go ahead and do it, just don’t expect to be given a court order to ignore contract terms to USE someone else’s systems. It will not happen.

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