Walters: Section 230 Has “Fewer and Fewer Friends These Days”

In 2017, in a paper that you may have seen referenced on Wikipedia and elsewhere, Christian Dippon of NERA Economic Consulting assessed the economic damage that would result from weakening the “safe harbors” offered under Section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act – something a wide variety of interest groups in the U.S. now seem desperate to accomplish.

“Based on our findings, we estimate that the decline in the U.S. Internet sector would eliminate over 425,000 jobs,” Dippon wrote. “The U.S. gross domestic product would decrease by $44 billion annually. In addition to these more easily measurable direct effects on the U.S. economy, a reduction in safe harbor protections will also have negative secondary effects. In particular, it will reduce the formation of Internet intermediary startups, as well as decrease investment in the Internet more generally.”

Among those who own and operate the websites and platforms shielded by Section 230, the safe harbor it provides is seen as a godsend, a bulwark against facing a legion of lawsuits stemming from the expression published by their third-party users. Increasingly, though, Section 230 is seen as a problem by politicians, plaintiffs’ attorneys and many users who believe social media platforms are selectively stifling their political speech under the guise of enforcing their (often vague) terms of service.

As attorney Lawrence Walters put it in recent comments to YNOT, “It looks like Section 230 has fewer and fewer friends these days.”

“That is unfortunate, since Section 230 has been an essential foundation for online innovation and widely regarded as the First Amendment of the Internet,” Walters continued.

After reading about President Donald Trump’s “Executive Order on Preventing Online Censorship” and Senator Josh Hawley’s “Limiting Section 230 Immunity to Good Samaritans Act,” I reached out to Walters to ask him what he made of these and other efforts to amend, undermine or even repeal Section 230.

“At issue in the Executive Order and Hawley’s bill is the so-called Good Samarian content moderation provision which allows online platforms to remove content that is obscene, illegal, or objectionable,” Walters explained. “The Administration and some conservatives believe that powerful platforms have been taking down certain information based on viewpoint, for political purposes. The DOJ recently released its own proposal, which goes further by removing Section 230 immunity for certain user-submitted content along with forcing platforms to be more transparent in their filtering decisions. These proposals may pave the way to legal action against large platforms who filter content based on political viewpoint.”

Among the many problems with Trump’s order, Hawley’s bill and other efforts to curtail the protections of Section 230 is they seem to be missing a crucial point, Walters noted.

“These attacks on Section 230 immunity for filtering decisions ignore the fact that the platforms, themselves, have First Amendment rights to make editorial decisions on whether content will be published or deleted, and how the content will be displayed,” Walters said. “Any government restriction on these enshrined rights is likely to create a First Amendment battle over government censorship. The Executive Order cannot undo 20+ years of case law broadly interpreting Section 230 immunity.”

While Trump’s order can’t undo the last couple decades of case law, Walters warned that the “legislative proposals have the potential to change the legal landscape for online platforms.”

“Another bill, the EARN IT Act, represents a broader assault on internet freedom and privacy, as it seeks to impose a set of best practices that must be adopted by tech companies to ‘earn’ Section 230 immunity,” Walters said. “One of these best practices is expected to include elimination of encrypted communications which has long been a thorn in the side of the government which wants back door access to user messages when requested by subpoena, court order, or National Security Letter.”

“If the communications are encrypted, the platform has no valuable information to provide when requested,” Walters continued. “However, encryption is critical for many users who depend on privacy such as journalists investigating government corruption, doctors communicating with patients about confidential health information, or lawyers engaged in privileged discussions with clients.”

While the idea of chipping away at the protections offered by Section 230 has a good deal of bipartisan support in Washington, there is plenty of opposition to the idea, especially in the context of the EARN IT Act.

“There has been substantial push back against the EARN IT Act by large tech companies and privacy advocates,” Walters said. “So, the recent proposals by Hawley and the DOJ may represent a less intrusive, but still harmful, attempt to reign in perceived censorship of conservative voices by large platforms.”

For proponents of Section 230, the problem is that each of these legislative and executive threats has potential to undermine the safe harbor, so if any of them should go into effect, the impact could be significant – and potentially crippling to the development of new services and platforms which rely on the safe harbor. Ironically, the ones who would be hurt most would be the potential competitors of the platforms and services who are currently drawing the ire of the politicians and others who want to amend Section 230.

“Any further weakening of Section 230 will make it less likely that we’ll see the next Uber, Tumblr, Twitter, or WhatsApp,” Walters said. “A small tech platform cannot afford to be held responsible for content posted by third parties or for its own editorial decisions on how to display such content. Large, established platforms have the resources, tools, and legal budget to maintain their foothold but a startup won’t tolerate the risk.”

As Walters noted in concluding his remarks, we don’t need to merely speculate about the damage that can be done by legislation that undermines Section 230, because we’ve already observed it with the advent of FOSTA/SESTA.

“FOSTA has already destroyed countless online voices and platforms with its initial swipe at Section 230 immunity,” Walters said. “If the current proposals gain traction, we may not be far from an Internet 3.0 which will only contain carefully-curated content that has been selected and sanitized by large platforms for public consumption.”