Return to the index

Can We Fix the Internet? Could Revising The Communications Decency Act Build a Better Online World? - January 10, 2021

In 1996, Congress passed the Communications Decency Act, which established a set of rules and regulations for then uncharted territory: the World Wide Web.

This was the United States Congress's first notable attempt to regulate pornographic material on the Internet. In the 1997 landmark case Reno v. ACLU, the United States Supreme Court struck the act's anti-indecency provisions.

As eventually passed by Congress, it affected the Internet and online communications in two ways:

  1. It attempted to regulate both indecency (when available to children) and obscenity in cyberspace.

  2. Section 230 of the Communications Act of 1934 (Section 9 of the Communications Decency Act / Section 509 of the Telecommunications Act of 1996) has been interpreted to say that operators of Internet services are not publishers (and thus not legally liable for the words of third parties who use their services).

Section 230 allows companies to regulate themselves, shielding them from liability for much of the content their users post on their platforms and granting companies legal immunity for good faith efforts to remove content that violates their policies.  Without these provisions, it would be unlikely that the social media giants Facebook & Twitter would exist as they do today.

The key part of the provision -- Section 230 -- sometimes called the "26 words that created the internet" reads, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In other words, individual users can be sued for content they post, but generally the platforms cannot.  This liability protection makes sense for owners of web properties who allow user-generated content.  In the early days of the Internet this applied to comments on newspaper and blog articles, bulletin boards and personal webspaces on hosts like GeoCities & AOL.  As social media platforms emerged in the 2000s, it protected the companies that operated them from liability that would have been operationally and technologically prohibitive to growth.

The moderators of these platforms have since worked on an honor system, incentivized by the desire to provide a non-offensive experience and maintain a good public reputation for the sake of their shareholders.

Over time however several fundamental factors have changed:

  1. A handful of social media platforms monopolized online activity. 

  2. More than half of the world now uses social media.

  3. Social media users are now spending an average of 2 hours and 24 minutes per day multinetworking across social networks and messaging apps.

  4. Facebook accounted for 60.52 percent of all social media site visits in the United States in October 2020. Pinterest was ranked second with 21.04 percent of all U.S. social media site visits. Social networking is one of the most popular internet activities in North America, particularly in the United States. A total of 79 percent of internet users in the United States have a social network profile. The number of social network users in the United States is projected to increase from 244 million in 2018 to over 257 million users in 2023. Facebook is, by far, the most popular social media site.

  5. Extremists and legitimate political parties alike have mastered the art of "hacking" the existing frameworks to undermine Democracy, where major parties operate with propaganda budgets larger than the GDP of some nation states.

  6. Authoritarian regimes use similar tactics to dissemenate dangerous propaganda, stage coups, foment violence and unrest.

Source: Statistica

Social media, especially Facebook now dominates the information system in the US, serving not only as a primary platform to connect to friends, but a primary source for news and information about products and services.  It has also become the primary forum for democracy.

Comparing The First Amendment to Section 230 of the CDA

Many Americans today have never lived in a world before there was Internet, and those who did often struggle to imagine life without it.  A compelling TED talk by Jess Miers begins with a comment on the futility of trying to appeal to the past.  At the dawn of the meteoric rise of "The World Wide Web" in the 90s, Congress was faced with a complex question:

How do you regulate a domain of communication that is virtually impossible to moderate and regulate without fundamentally crippling the value of the technology in the marketplace?

Section 230 basically concluded, "you can't".  It established almost complete freedom from liability for these platforms, as long as the content originated from an individual member.  Fast forward 25 years to a world where there is rampant disinformation, bullying, libel, defamation, piracy of intellectual property and a practical collapse of the formal "Fourth Estate" (The Press) that serves such a vital role as a watchdog against government corruption and a high bar for "truth by collective observation and peer review".

The First Amendment is probably the most important and essential liberty we enjoy in the United States.  It's easy to take for granted unless you've lived under a nation state regime that censored free speech.  But it's important to note that even our sacred First Amendment as framed in The Constitution came with caveats, and the body of laws that define those caveats evolved over time as new technology and legal challenges arose. 

The key limitations to the first amendment are:

It's also critical to understand that established news companies like newspapers, television and radio stations have a high bar of editorial oversight because of their significant legal liability.  This is a powerful incentive for news organizations to remain reputable and report the truth within their constitutional rights.  Over the past decade, the Fourth Estate has been drowned out by a growing din of conspiratorial lies and "Potemkin News Sites", named after a fake portable village built solely to impress Empress Catherine II by her former lover Grigory Potemkin, during her journey to Crimea in 1787.

With this in mind, Miers asks a startling question that cuts to the heart of the argument:

"Did Section 230 of the CDA provide more freedom to Internet platforms than the First Amendment?"

The answer is, quite simply, yes

In other words, section 230 offers a gaping loophole for multi-billion dollar corporations and the "anonymous" bad actors that exploit them to circumvent the limitations of the First Amendment for monetary profit and personal gain.  It allows corporations to profit from obscenity, defamation, blackmail, incitement to violence and crime.  In other words, it's fair to say that it's unconstitutional.

For years there have been cries from the left and right to "regulate the Internet!" Unfortunately, the moderator's dilemma is an incredibly complex problem and regulation could backfire horribly in myriad ways.

How this law is revised is to be decided by our elected government, and will likely see reform in 2021. Many say these issues are too important for private corporations to decide. It would be a disaster to simply repeal it. Reasonable liability protections must be preserved to make the system workable, but clearer guidelines must be established for "best effort" attempts to moderate user generated content. Some suggest leveraging anti-trust laws to break up behemoths like Facebook and encourage more competition so that users have more choices to use platforms with more or less aggressive moderation policies. The larger corporations argue that trust busting only invites a "race to the bottom" where the platforms with the least moderation will prevail and the underlying problems will only get worse.

Mark Zuckerberg, the most powerful man on the Internet, offered an op-ed piece agreeing that some degree of regulation is desirable, and many tech leaders have followed suit.  In the Washington Post article he suggests a focus in four areas that could serve as a reasonable guide for lawmakers:

  1. Harmful content - Clear guidelines on what constitutes harmful content - terrorist propaganda, hate speech, etc. He suggests, "Establish third-party entities to set standards governing the distribution of harmful content and to measure companies against those standards. Regulation could set baselines for what’s prohibited and require companies to build systems for keeping harmful content to a bare minimum."

  2. Election Integrity - Clear regulation establishing common standards for verifying political actors and their online advertising.

  3. Privacy - Data privacy regulation in line with the  European Union’s General Data Protection Regulation (GDPR).  Most companies already comply in order to conduct business in the EU.

  4. Data Portability - If you share data with one service, you should be able to move it to another. This gives people choice and enables developers to innovate and compete.

Whatever happens, rest assured that the inherent decentralized design of the Internet will always allow for unprecedented freedom and the potential to help democratize the planet, undermine authoritarianism and beyond. Even if Section 230 is revised, Americans are still protected by the vast body of laws surrounding the First Amendment. Even under the most repressive regimes, online life flourishes via private communications through encryption and a wide range of technologies to organize and express opinions. Innovation will always prevail, and certainly many will still find ways around any attempt to stop them.  It will not stop the conspiratorial thinking and disinformation that so threatens to undermine our Democratic Republic, but it's long past time that we curtail these multi-billion dollar corporations from profiting from a collapse of civility.

License: Creative Commons Attribution 4.0 International (CC BY 4.0)

Return to the index