October 25, 2017 at 5:00 am ET
As the internet was on the brink of booming in the mid-1990s, two lawmakers from different parties reached across the aisle and made history.
U.S. Reps. Chris Cox and Ron Wyden, a California Republican and an Oregon Democrat, got together and found bipartisan agreement on how to establish a legal framework that ensures internet freedom. It became part of the Communications Decency Act of 1996 and is commonly called Section 230. It remains a pillar of internet freedom today.
Section 230 protects website platforms from legal liability, within reasonable limits, for the content their users post. The immunity it provides is limited. It does not include immunity from prosecution for violations of federal criminal law, including conspiracy and inducement. And it does not provide immunity from intellectual property laws. Section 230 does extend liability immunities to state criminal laws.
Section 230 acknowledged the unique and innovative opportunity the internet represented at the time of the law’s enactment and sought to create an atmosphere of permissionless innovation that would foster growth. It sought to unburden web platforms from libel and defamation laws that govern newspapers and magazines. This is because a large part of online communication is user-generated. Some websites are just hosts and rely on third parties to generate content. Section 230 holds that the responsibility for posted content is with the user, not the host.
Limited immunity from liability is essential to ensuring internet freedom. First, it enables the free flow of information and ideas, and maintains the Justice Department as the policing authority over the internet with its uniquely interstate nature. Additionally, Section 230 provides Good Samaritan protections to platform operators by not penalizing them for enforcing civility rules and attempting to self-police for inappropriate content even when such attempts are imperfect.
It is not a stretch to say that Section 230 has facilitated trillions in wealth creation and massive economic benefit. In 2014, the internet sector was 6 percent of the economy – nearly $1 trillion of GDP. These platforms have given the United States a competitive advantage in the global information economy. Looking to the future, Section 230’s limited liability will continue to be essential for the innovations that develop the internet of tomorrow.
Despite the clear evidence that Section 230 is working, some in Congress are considering changing the law with a bill they mistakenly believe will help prevent online sex trafficking.
Congress should absolutely work to reduce sex trafficking. And while the legislation’s supporters are well-intentioned, their overly broad proposal would likely produce the opposite results they desire. Web platforms that currently engage in Good Samaritan policing of their own sites will stop, fearing any action that could trigger prosecution. Instead of stopping sex trafficking, the bill might actually push it to the dark web, making it even harder to investigate.
The legislation’s supporters make wild assertions that the alternative to their legislation is to do nothing and let the sex traffickers win. That take-it-or-leave-it approach, typical in Washington groupthink, is simply false. This bill is certainly not the only way, or even the best way, to stop online sex trafficking or to obtain the justice that victims deserve.
They argue that the bill is necessary to prosecute sites like Backpage.com, but this claim does not hold water. Backpage stands accused of knowingly permitting and even creating advertisements that facilitate sex trafficking, which is already illegal. The site is being prosecuted in Arizona and Missouri under current law.
To be sure, web platforms should be held responsible for violating federal criminal law, especially if they engage in or assist in sex trafficking. But those crimes are already prosecutable and Section 230 provides no immunity.
The legislation’s backers also contend that it will not affect the Good Samaritan provision of Section 230, intended to protect hosts that simply republish potentially illegal material. This is also false. The bill is worded to avoid reference to the provision, but includes language that would render the protection meaningless. Because the bill targets websites that have “knowledge” of the illegal activities it targets, and it is not clear how broadly this will be defined, websites will stop policing their content altogether and the Good Samarian provision will become moot.
This rush to action is especially problematic given the Trump administration’s commitment to regulatory reform. Ironically, the same lawmakers who rally against overreach by the executive branch would now regulate the internet without considering the costs and benefits, weighing alternatives or considering how the regulation could backfire.
Ultimately, the measure would chill the type of investments in innovation that allowed the internet to flourish and perhaps halt entirely the development of tomorrow’s internet.
As the proposal goes through regular order, Congress must ensure that any changes to current law actually produce progress in combating online sex trafficking.
There are more effective ways to fight that scourge. The light-touch regulatory framework that fostered internet development should not be discarded, and certainly not with such little thought.
David Barnes is director of policy at Generation Opportunity.
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