In 1995, Senator James Exon brought a blue binder to the
floor of the Senate. It was full of, well…
-The most hardcore, perverse types of pornography.
The images came from the Internet. Exon wanted his
fellow senators to realize what kids could see…
-Come by my desk and take a look at this disgusting
material.
…with just the click of a button.
-It’s certainly not hard to find.
-And, I was just like, Dad, get a load of this.
In the mid-90s, Americans debated how to handle all
kinds of objectionable content on the Web, including hate
speech and defamation. Out of that debate came a law that
helped create the modern Internet, and now both
Republicans and Democrats want it changed. It’s called:
-Section 230.
-Section 230 should be revoked.
But what does that law actually do?
And what would happen to the Internet if we changed it?
The thing to remember about the 90s is…
-On your mark, get set, we’re riding on the Internet.
...the Internet was young and
few people really understood it.
-Allison, can you explain what Internet is?
It seemed cool.
-It’s very hip to be on the Internet right now.
-Now that I’m on the Internet,
I’d rather be on my computer than doing just about anything.
It’s really cool.
But we hadn’t agreed on what to do with all the objectionable
content, or if we should do anything. James Exon, the
senator with the porn binder, wanted the government to
clean up the Internet by effectively making indecent
material like porn illegal online.
-And so he proposed an
amendment to the Telecommunications Act
called the Decency Act,
the Communications Decency Act.
But two members of Congress,
Christopher Cox and Ron Wyden, thought that
companies would do a better job cleaning the Internet up
themselves. There was just one big legal problem.
-There were court cases that perversely made, uh, Internet,
uh, providers liable if they tried to exercise editorial
discretion, keep, uh, smut off the Internet, and so on.
At the time, courts held that Internet providers like Prodigy,
which moderated some user content,
were potentially liable for anything their users posted.
So the companies faced a choice: clean up their websites
and risk getting sued, or go totally hands off and face no
legal consequences. Cox and Wyden didn’t like that.
-That is backwards. We want to encourage people like Prodigy,
like Compuserve, like America Online, like the new Microsoft
Network to do everything possible for us the customer to
help us control what comes in and what our children see.
So Cox and Wyden wrote a provision, Section 230, that let
companies moderate content without being on the legal hook
for it. Their hope was that Internet companies would, in
good faith, police objectionable content on the Web.
-We came to call it the sword and the shield. And the sword
is the ability to take down horrible stuff on the Internet.
The shield is the protection from frivolous litigation.
Section 230 was added to Senator Exon’s
Communications Decency Act, and the whole thing passed in 1996.
But then Exon’s porn ban ran into one big wall:
the First Amendment.
-Free speech advocates are hailing a ruling: the U.S.
government cannot enforce the Communications Decency Act
without violating the constitutional right
to free speech.
-You, you probably guessed that because, uh, there’s —
Spoiler alert, there’s porn on the Internet.
But the courts let Section 230
stand. And that little law created a massive industry.
-So, you think about Facebook, Twitter, YouTube, even
Wikipedia. None of these business models could exist in
their current forms if the platforms had to defend in
court the veracity of every single thing that people post.
The story of Section 230 is the story of the Internet: more and
more people posting what they want online, and websites not
getting sued for it because of their legal shield. The dark side
of that story started pretty early: in 1995, when an
anonymous user on AOL impersonated a man named
Kenneth Zeran and used his name and phone number to
sell T-shirts glorifying the Oklahoma City bombing.
-At the time, it was a fairly novel approach of, really,
ruining someone’s life.
After receiving a tsunami of threatening phone calls, Zeran
begged AOL to take down the anonymous user’s ads.
-They, for a while, would take them down. But then they
stopped listening to him. He was annoying [laughs]. They
just moved on.
Zeran sued AOL in 1996. But the court said Section 230
allowed AOL to leave up the posts even after Zeran reported
them. AOL got to use Section 230’s shield, in other words,
without ever having to touch its sword.
-It becomes, effectively, the law of the land. You could keep up
the content no matter how horrific, how defamatory it is,
and you are not going to be liable for it.
Carrie Goldberg is a lawyer who says the broad immunity
Section 230’s shield gives Internet companies has made
some of them lazy and irresponsible.
-Section 230 is not a law that protects free speech. Section
230 is a law that protects an industry.
Four years ago, her client, Matthew Herrick, was
impersonated by a vengeful ex-boyfriend on the dating app,
Grindr.
-He would create profiles using Matthew’s picture and his
name and then send unwitting people to Matthew’s home and
to his job to have sex with Matthew.
-Matthew Herrick says for months he couldn’t go to the
restaurant where he waited tables, or his home, without
men he didn’t know approaching him for
sex or drugs.
-Matthew was receiving sometimes 23 people in person
at his home. And often, Matthew’s ex would say that
Matthew was into rape fantasies. So he was setting
Matthew up to be sexually assaulted.
-Herrick said he filed 50 complaints with Grindr and
the company never did anything.
-We were suing them ultimately for, uh, releasing a
dangerous product onto the marketplace.
But the court said that, just like
in the Zeran-AOL case, Grindr didn’t have to help Herrick.
-It was, in my opinion, the most expansive and
extravagant interpretation of Section 230 to date.
Goldberg thinks that Section 230 should be changed or
revoked so people like Herrick
could sue for Internet companies’ negligence.
-Everybody should have the right to be able to sue
somebody or a company who has harmed you or is
continuing to harm you. And so I see this not as a speech
issue, but an access to justice issue.
-You know, why do these harms happen? It’s a
combination of the perpetrator and the platform. Site
operators should only enjoy immunity from liability if
they’re engaged in reasonable content moderation practices.
Right, there here has to be an exchange, like, you get the
legal shield, but you’ve got to do something.
Today, Section 230 has helped create an Internet industry
worth more than a trillion dollars.
-Section 230 is how these companies have gotten big, it’s
how they’ve gotten powerful, it’s how they’ve gotten rich.
And agreeing on what it would mean for these companies to
use Section 230’s sword and shield responsibly has gotten
harder. It depends on what you think the problem is.
Democrats want companies like Facebook to do more
policing of disinformation.
-Because it is not merely an Internet company. It is
propagating falsehoods they know to be false.
But some Republicans claim there’s a different problem:
censorship of conservative views. And they want to change
or scrap Section 230 to make Internet companies do less
policing.
-The Big Tech oligarchs have declared war on the
Republican Party and conservatives. I think it’s time
that we consider the outright repeal of Section 230.
Tweaking Section 230 might help individual victims of
abuse like Matthew Herrick,
and it could make Internet companies more accountable
for the way they moderate content. But defenders of the
law say that changing it too much could undermine
people’s freedom to post what they want online.
-What I think we need are
changes that are very carefully tailored and that address a
particular harm and that also consider, how do we address
this harm without just sort of, um, causing total chaos to the
existing Internet that we know?