There’s been a lot of talk about 2023 being the year that Section 230 changes or is repealed. There’s even talk about a challenge to it going to the Supreme Court. This could mean that the entire thing is repealed with nothing to replace it. That’s unlikely, because it could mean total chaos. But there are a lot of other possibilities. New language could replace Section 230, meaning its protections could be expanded or reduced. Or, no change could be made because the Congress wouldn’t be able to come together and agree what changes need to be made. All of that is possible, and more.
What is Section 230 anyway?
I went into some detail here, a couple of years ago. The proper name, which no one uses, is 47 United States Code, Section 230, enacted as The Communications Decency Act. It’s part of the law of this land and carries the same weight as any other law. It originated in 1996 and hasn’t been updated since.
In short, Section 230 says two things. First, the owner of a web site can’t be sued if its users post something objectionable. Second, the owner of a web site can’t be sued if they decide to delete user content because they think it’s objectionable. This is about all you needed to say back in the 1990s when the biggest online services had a million or so frequent users.
The bigger problem
The bigger problem, though, is what Section 230 does not say. Here’s a short list of things that Section 230 doesn’t address:
- Operators of web sites are treated differently from broadcast TV, newspapers, and other media. TV and newspapers have an ethical responsibility to the truth, and online forums don’t.
- Web sites are not responsible even if a nearly infinite amount of harassment occurs on their sites.
- Web sites are free to suppress free speech in any way they want, for any reason. Other private entities like newspapers and traditional broadcast media can also suppress free speech, but don’t have the ability to do it on the same granular level.
- Web sites are largely protected from blame even if something appears on them that leads to a crime being committed and it’s completely foreseeable.
The real issue here is how much that’s going to change. Everyone agrees in theory that a service like Facebook should act to save lives if they can. Most people agree that it’s a big problem when massively popular social networks can amplify clearly false statements. But once you get into the details, it gets muddier. Who decides what “false statements” are? Who decides when a social network hasn’t acted responsibly? Should the internet be, at the end of the day, more free to more opinions or less free to dispute proven facts?
A word about free speech
Now, I’m going to be careful here and tell you again, I’m not a lawyer. Here’s the advice I’ve gotten over and over. Free speech and the First Amendment applies to the government’s control over what you can say, not on what private companies can do. When it comes to private companies and private people, it becomes about libel and slander.
Libel and slander refer to intentionally making false statements in writing (libel) or orally (slander) with the intention of hurting someone or something else. It’s ok to lie in your Facebook posts. It’s ok to express your opinion. But as soon as you do it with the clear purpose of hurting someone or something else, they can sue you.
Here’s what they can’t do, according to Section 230. They can’t sue the web site you posted your opinion on. And that’s important, because it brings up the real question of whether or not we should be depending on big social networks to address libel and slander when they see it. Section 230 says they have the right to delete a hateful comment, but they don’t have the responsibility to do it.
When it comes down to it, that’s the big change.
What it means for this blog
Section 230 largely has to do with user comments. If I, an employee of Signal Group, LLC (the owner of this blog) say something I shouldn’t, there could be a lawsuit whether or not Section 230 exists. But, without section 230 protections, I probably wouldn’t be able to allow comments on this site. I just wouldn’t be able to police them well enough to keep from getting lawsuits either as a person or as part of the company.
In the previous article I said I’d probably have to turn off all online comments, even on other sites. It’s hard to know if that’s true, though. It depends on what the new rules would be. Would the owner of that site be responsible for comments on their site, even if it’s about an article on my site?
What it means for the planet
This is the tough part of this. It’s going to take a lot of courage to realize that Section 230 doesn’t work. The problem is that it does work, it just doesn’t work well enough. It will take a lot of discussion to decide what the boundaries should be. Inevitably whatever decision Congress makes will have to go to the US Supreme Court, and possibly to the United Nations or some other supergovernmental body.
See, when you have a company like Meta which operates Facebook, Instagram, and WhatsApp, you have an organization that’s as powerful as many governments. We have never been terribly good at knowing what to do with such organizations. It was hard enough when we were “just” talking about theft of resources or human rights violations in other countries. When you’re talking about information and influence that’s another whole ballgame.
Luckily, I don’t have to solve those really big problems. I think I have a pretty good idea what it means here on this blog, and that’s about all I can do right now.
