Welcome to the Breakdown.
My name is Oumou, I'm a staff fellow on the Berkman Klein
Center which is sending this information program.
Our topic of discussion today is CDA 230,
section 230 of the Communications Decency Act,
otherwise known as The Twenty-Six Words
That Created The Internet.
Today I'm joined by a Daphne and Keller
from the Stanford Cyber Policy Center.
So thank you for being with us today Daphne, I appreciate it,
especially in helping us unpack what has turned out
to be such a huge and maybe consequential issue
for the November election and certainly
for technology platforms and all of us
who care and think about this information really critically.
One of the first questions I have for you is a basic one,
can you tell us a little bit about CDA 230
and why it's referred to as The Twenty Six Words
That Started The Internet?
Sure.
So first I strongly recommend Jeff Kosseff's book
which coined that Twenty Six words phrase,
it is a great history of CDA 230 and it's very narrative.
It just explained what was going on in the cases
and what was going on in Congress.
So it's not just something for legal nerds and lawyers,
it's a really useful reference.
But maybe just to explain CDA 230's role,
I'll pull back a little bit to the big picture
of Intermediary Liability Law in the US generally.
So Intermediary Liability Law is the law
that tells platforms what legal responsibilities they
have for the speech and content posted by their users.
And US law falls into three buckets.
There's a big bucket, which is about copyright
and there the law in point is the Digital Millennium
Copyright Act, the DMCA, and it has this very choreographed
notice and take down process.
And through Harvard's Lumen database
actually there has been just amazing documentation
of how that process is abused, how much erroneous over removal
that leads to just what happens in that kind of system.
That's one big bucket.
The other big bucket that doesn't get a lot of attention
is federal criminal law.
There's no special immunity for platforms
for federal criminal law crimes.
So if what you're talking about is
things like child sexual abuse material,
material of support of terrorism, those things,
the regular law applies.
There is no immunity under CDA 230 or anything else.
And then the last big bucket, the one
we're here to talk about today is CDA 230,
which was enacted in 1996 as part
of a big package of legislation.
Some of which was subsequently struck down
by the Supreme Court, leaving CDA 230 standing
as the law of the land.
And it's actually a really simple law,
even though it's so widely misunderstood that there's now
a Twitter account, a bad section 230
takes just to retweet all the misrepresentations of it
that come along.
But what it says is first platforms
are not liable for their users speech.
Again, for the category of claims
that are covered so this isn't about terrorism, child, sex
abuse material, et cetera.
But for things like state law defamation claims
platforms are not liable for their users' speech.
And the second thing it says is also
platforms are not liable for acting in good faith
to moderate content.
So to enforce their own policies against content
they consider objectionable.
And this, that second prong was very much part
of what comes Congress was trying
to accomplish with this law.
They wanted to make sure that platforms could adopt what
we now think of as terms of service or community guidelines
and could enforce rules against hateful speech or bullying
or pornography, or just the broad range
of bad human behavior that most people don't
want to see on platforms.
And the key thing that Congress realized
because they had experience with a couple of cases that had just
passed that happened at the time,
was that if you want platforms to moderate,
you need to give them both of those immunities.
You can't just say you're free to moderate, go do it.
You have to also say, and if you undertake to moderate,
but you miss something and there's
defamation is still on the platform or whatever,
the fact that you tried to moderate
won't be held against you.
And this was really important to Congress
because there had just been a case where a platform that
tried to moderate was tagged as acting
like an editor or a publisher and therefore facing
potential liability.
That's the core of CDA 230.
And I can talk more if it's helpful about the things people
get confused about, like the widespread belief that
platforms are somehow supposed to be neutral, which is-
Well, would you please say something about that.
Yeah.
Congress had this intention to get platforms to moderate.
They did not want them to be neutral they
wanted the opposite.
But I think a lot of people find it
intuitive to say, well, it must be that platforms
have to be neutral.
And I think that intuition comes from a pre internet media
environment where everything was either a common carrier,
like a telephone, just interconnecting
everything and letting everything flow freely.
Or it was like NBC News or The New York
Times it was heavily edited and the editor clearly
was responsible for everything that the reporters
put in there.
And those two models don't don't work for the internet.
If we still have just those two models today,
we would still have only a very tiny number of elites
with access to the microphone.
And everybody else would still not have the ability
to broadcast our voices on things like Twitter or YouTube
or whatever that we have today.
And I think that's not what anybody wants.
What people generally want is they
do want to be able to speak on the internet without platform
lawyers checking everything they say before it goes live.
We want that.
And we also generally, also want platforms to moderate.
We want them to take down offensive
or obnoxious or hateful or dangerous but legal speech.
And so 230 is the law that allows both of those things
to happen at once.
Okay.
Daphne can you talk a little bit about the two different types
of immunity that are outlined under CDA 230 we call them
shorthand (c)(1) and (c)(2)?
Sure.
So in the super short hand, (c)(1) is immunity for leaving
content up and (c)(2) is immunity for taking content
down.
Yeah.
So most of the litigation that we've seen historically under
the CDA is about (c)(1).
It's cases often really disturbing cases where
something terrible happened to someone on the internet
and a speech defaming them was left out
or speech threatening them was left up
or they continue to face things that were illegal.
So those are cases about (c)(1), if the platform leaves that
stuff up, are they liable?
The second prong (c)(2) just hasn't had nearly as much
attention over the years until now.
But that's the one that says platforms
can choose their own content moderation policy that they're
not liable for choosing to take down content
they deem objectionable as long as they
are acting in good faith.
And that's the problem that does have this good faith
requirements.
And part of what the executive order is trying to do
is say, oh, well, you have to meet the good faith requirement
to get any of the immunities.
If someone can show that you are not acting in good faith,
then you lose this much more economically consequential
immunity under (c)(1) for contents
that's on your platform that's illegal.
And the biggest concern I think for many people
there is if this economically essential immunity is
dependent on some government agency
determining whether you acted in good faith.
That introduces just a ton of room for politics,
because my idea of what's good faith won't
be your idea of what's good faith,
won't be attorney general Barr's idea of what's good faith.
And so having something where political appointees
in particular get to decide what constitutes good faith and then
all of your immunities hanging in the balance
is really frightening for companies.
And interestingly today we see Republicans
calling for a fairness doctrine for the internet calling
for a requirement of good faith or fairness
in content moderation.
But for a generation it was literally
part of the GOP platform every year
to oppose the fairness doctrine that was enforced
for broadcast by the FCC.
President Reagan said it was unconstitutional.
This was just like a core conservative critique
of big government suppressing speech for decades
and now it has become their critique,
and they're asking for state regulation of platforms.
That is so interesting to me, both that, and the fact
that CDA 230 in so many ways is what allows Donald Trump's
Twitter account to stay up.
It's really, really interesting that the GOP
has decided to rail against it.
It's fascinating.
So just recently the president signed an executive order
concerning CDA 230 pretty directly.
There was an episode on social media
where the president sent out a tweet,
it was then labeled by Twitter, fact-checked in a way.
Can you talk a little bit about what the executive order does?
Sure.
So I think I wanted to just start
at a super high level with the executive order in the day
or so after it came out, I had multiple people
from around the world reach out to me
and be like, this is like what happened in Venezuela when
Chavez started shutting down the radio station.
It's has this resonance of like, there
is a political leader trying to punish speech platforms
for their editorial policies.
And that, before you even get into the weeds,
that high level impact of it is really important
to pay attention to.
And that is the reason why CDT the Center for Democracy
and Technology in DC has filed a first amendment
case saying this whole thing just can't stand,
we'll see what happens with that case.
So then there are also in the executive order
for other things that might be big deals.
So one is that DOJ has instructed to draft legislation
to change 230.
So eventually that will come along
and presumably it will track the very long list
of ideas that are in the DOJ report that came out this week.
A second is it instructs federal agencies to interpret 230
in the way that the executive order does.
This way that I think is not supported by the statute that
takes the good faith requirement and applies it in places
it's not written in the statute.
Nobody's quite sure what that means because there just
aren't that many situations where federal agencies care
about 230, but we'll see what comes out of that.
A third is that attorney general Barr of the DOJ
is supposed to convene state attorneys general to look
at a long list of complaints.
And this is like, if you look at it, if you're
an internet policy nerd, it's just all the hot button issues
that, are fact checkers biased?
Can algorithmic moderation be biased and well it can.
How can you regulate that?
You will recognize these things if you look at the list.
And then the fourth one, and this
is one that I think deserves a lot of attention
is that DOJ is supposed to review whether platforms,
particular platforms are quote problematic vehicles
for government speech due to viewpoint discrimination,
unquote.
And then based on that look into whether they
can carry federally funded ads.
This is I think for most platforms
the ads dollars part is not that big a deal,
but being on a federal government block
list of platforms with disapproved editorial policies,
just like has this McCarthyist feel.
Can you talk a little bit about the role of CDA in relation
to the business models that the platforms run?
Sure.
So broadly speaking, the internet
could not exist the way we know it
without something like CDA 230.
And that's not just about the Facebooks of the world, that's
about everything all up and down the technical stack DNS
providers, CloudFlare, Amazon Web Services
is another backend web hosting.
And also tons of little companies,
the knitting blog that permits comments or the farm equipment
seller that has user feedback.
All of those are possible because of CDA 230.
And if you pull CDA 230 out of the picture,
it's just very hard to imagine the counterfactual
of how American internet technology and companies would
have evolved.
They would have evolved somehow and presumably
the counterfactual is we would have something
like what the EU has, which boils down to a notice
and take down model for every kind of legal claim.
But they'd barely have an internet economy
for these kinds of companies.
There's a reason that things developed the way
that they did.
Yeah.
Do you think that there's any, maybe not what
you think, but I'm sure that we can all
agree this is likely to be the case, if the liability shared
with that 230 offers platforms is removed,
how would that change the way that platforms approach content
moderation?
Well, I think a lot of little companies
would just get out of the business entirely.
And so there's an advocacy group in DC called Engine, which
represents startups and small companies,
and they put together a really interesting two
pager on the actual cost of defending even frivolous claims
in a world with CDA 230 and in a world without CDA 230.
And it's basically, you're looking at 10 to 30 thousand
dollars in the best case scenario
for a case that goes away very, very quickly even now.
And that's not a cost that small companies want to incur.
And the investors there are all these surveys
of investors saying, I don't want to invest in new platforms
to challenge today's incumbents if they're
in a state of legal uncertainty where
they could be liable for something at any time.
So I think you just eliminate a big swath
of the parts of both the existing parts of the internet
that policymakers don't pay any attention to.
You make them very, very vulnerable
and some of them go away and that's troubling
and you create a lot of problems for any newcomers
who would actually challenge today's incumbents
and try to rival them in serious user
generated content hosting services.
For the big platforms, for Facebook,
for YouTube they'll survive somehow,
they'd change their business model, they probably ...
the easiest thing to do is you use their terms of service
to prohibit a whole lot more and then just like take down a huge
swath so you're not facing much legal risk.
Yeah.
It's hard to imagine living in that kind of a world.
It is, it is.
Yeah.
Thank you so much for joining me today, Daphne.
This was a great and enlightening conversation
and I'm sure our viewers will enjoy it.
Thank you for having me.
Thanks.