By James Bladel
August 10, 2021 at 5:00 am ET
We hear a lot about our divided government. But Big Tech has managed to unite Democrats and Republicans against their most critical legal protections.
Both parties are taking aim at Section 230 of the Communications Decency Act of 1996, which shields websites from legal liability for user-generated content.
Scrapping or weakening Section 230 in the name of punishing social media platforms would be a mistake. It would not only devastate the infrastructure of the internet but exacerbate the problems lawmakers are trying to solve.
Back in January 2020, Joe Biden, then a candidate for the presidency, asserted that the provision should be revoked to stop social-media platforms from “propagating falsehoods.”
Republicans, meanwhile, blame Section 230 for allegedly empowering platforms to censor or discriminate against content in a politically biased manner.
In other words, Democrats and Republicans can’t agree on the exact problem with Big Tech. But they seem to agree that it’s Section 230’s fault.
Section 230 isn’t just a get-out-of-jail-free card for big social media companies. All manner and sizes of internet businesses, websites, and online services depend on its protections.
Without Section 230, everything from online job boards like CareerBuilder, to discussion platforms like Reddit, to customer review sites like Yelp would face legal liability for the posts generated by their users. One errant word could spell a devastating lawsuit — and the end of a website, app or other online service.
The irony is that tech giants like YouTube and Facebook would probably be best equipped to survive any new mandate to moderate web content. These firms have the money to cover the cost and the legal teams to navigate new laws.
But smaller websites, or those with fewer resources, would be collateral damage in the drive to rein in just a handful of tech heavyweights.
This disconnect is difficult to ignore. By tightening rules governing how Big Tech companies deal with user-generated content, lawmakers would unwittingly restrict access to thousands of the most useful, accurate websites on the planet.
That’s not the outcome would-be reformers are looking for.
The political and cultural ramifications of a post-Section 230 world would be just as dire. Absent the protection of Section 230, every online platform would be forced to adopt moderation policies for content even peripherally related to their services. This could create scenarios where a social media network chooses not to act against a post, but an internet service provider or domain registrar believes it must.
Such a patchwork of policies and practices would almost certainly escalate the political divisions and concerns about misinformation and “fake news” while amplifying criticisms that platforms are moderating content unevenly.
In other words, the primary complaints of both Democrats and Republicans would be exacerbated.
With that said, it’s fair to give Section 230 a fresh look after 25 years, if only to ensure that it’s fit for the modern internet. There are several ways we can maintain sensible protections and assign responsibility for online content in a more principled, systematic way.
For example, we could mete out liability protection based on a company’s proximity to the content in question. The entity closest to the content — the publisher — would deserve the least amount of protection. At the next level would be the platform.
Further down the stack would be the website host, internet service provider, domain registrar and content delivery network, all of which have little relationship to the content and thus merit the most protection from liability.
What counts as “close” or “far” is subject to debate. Some lawmakers are trying to start that conversation. Reps. Anna G. Eshoo (D-Calif.) and Tom Malinowski (D-N.J.) have proposed legislation that would revoke Section 230’s liability protections in cases where a platform amplifies damaging content through algorithms or recommendations. And like last year’s PACT Act, it also includes an exemption for “infrastructure companies,” which would encompass the providers above.
The challenges associated with regulating content and free expression on the internet are complex and require nuanced solutions. Section 230 may merit reform, but scrapping it entirely isn’t just misguided. It’s dangerous — and could make the problems identified by both Democrats and Republicans much worse.
James Bladel, GoDaddy’s vice president of public policy, is a 15-year veteran of the domain name industry and a frequent contributor to internet governance projects at ICANN and in Washington, D.C.
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