Help us improve in just 2 minutes—share your thoughts in our reader survey.

Section 230 of the Communications Decency Act of 1996

From Ballotpedia
Jump to: navigation, search
Seal of the United States Federal Communications Commission.svg
Federal Communications Commission
Net neutrality
Communications Act of 1934
State Policy
Federal Policy


Section 230 is a federal law that protects internet service providers and website companies from being held liable for most content created by users of their services, including content that could be considered false or defamatory. As usage of the internet increased throughout the early 21st century, the legal and social relevance of Section 230 grew, causing the provision to attract both critics and defenders. Some critics have argued that the law has exempted online companies from a legal responsibility to moderate what they view as harmful content, while others have argued it has protected companies that discriminate or censor content. Supporters of Section 230 have argued that it serves to promote and protect free speech and user choice on the internet.

In this article, you will find:

Legislative history and context

Section 230 was passed as part of the Communications Decency Act of 1996, which was part of a larger legislative package passed by Congress called the Telecommunications Act of 1996. This legislation amended the Telecommunications Act of 1934 with the stated goal of promoting competition and innovation within the telecommunications industry.[1] Congress passed the Telecommunications Act on February 1, 1996.[2] President Bill Clinton (D) signed it into law on February 8, 1996.[2]

At the time of the bill’s passage, household internet usage was limited but rapidly growing. Societal concerns over access to pornography and sexually explicit materials by minors accompanied the rapid growth of internet usage and became notable political issues in the 1980s and 1990s. Advocacy organizations such as the National Federation for Decency and Citizens for Decency through Law, for example, advocated for increased federal regulation of pornography. Responding to issues raised by these groups, the administrations of Presidents Ronald Reagan (R) and George Bush (R) dedicated Justice Department resources to prosecuting businesses in the adult entertainment industry.[3] Congress also sought to address concerns over pornography through legislation, including passage of the Communications Decency Act, which became Title V of the Telecommunications Act of 1996.[4] The CDA was authored by Senator James Exon (D) of Nebraska.[5] It established criminal and civil penalties for knowingly transmitting to minors sexually explicit materials or content considered by the law to be obscene.

Included in the final version of the CDA was an amendment authored by Oregon Representative Ron Wyden (D) (who became Senator Wyden later in 1996) and California Representative Christopher Cox (R). The amendment was titled the Internet Freedom and Family Empowerment Act and became indexed in federal law as Section 230 (officially 47 U.S.C. § 230).[6]

Shortly after passage, the American Civil Liberties Union challenged the constitutionality of the CDA on the grounds that it violated the First Amendment and Fifth Amendment. In a unanimous decision in 1997, the U.S. Supreme Court ruled in Reno v. ACLU that the Act violated the First Amendment.[7] The decision invalidated much of the CDA with the exception of the language of Section 230, which was not the subject of the ACLU’s legal challenge. Section 230 was left intact and remained federal law.

The legislative text

Below is the legislative text of Section 230 as of 1996.[8]

(a) Findings.--The Congress finds the following:
  1. The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
  2. These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
  3. The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
  4. The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
  5. Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.


(b) Policy.--It is the policy of the United States--
  1. to promote the continued development of the Internet and other interactive computer services and other interactive media;
  2. to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
  3. to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
  4. to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and
  5. to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.


(c) Protection for `Good Samaritan' Blocking and Screening of Offensive Material.--
  1. Treatment of publisher or speaker.--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.
  2. Civil liability.--No provider or user of an interactive computer service shall be held liable on account of--
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
(d) Effect on Other Laws.--
  1. No effect on criminal law.--Nothing in this section shall be construed to impair the enforcement of section 223 of this Act, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute.
  2. No effect on intellectual property law.--Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
  3. State law.--Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
  4. No effect on communications privacy law.--Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.


(e) Definitions.--As used in this section:
  1. Internet.--The term `Internet' means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
  2. Interactive computer service.--The term `interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
  3. Information content provider.--The term `information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
  4. Access software provider.--The term `access software provider' means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

Section 230 has been amended twice since 1996. In 1998, Congress added language requiring internet service providers to notify customers of the availability of parental controls. In 2018, Congress added language to clarify that Section 230 had no effect on federal sex trafficking laws. A current version of Section 230 can be read here.

Legislative intent

Section 230’s introductory language outlines its goals and intent. Section (b) states:

It is the policy of the United States--
  1. to promote the continued development of the Internet and other interactive computer services and other interactive media;
  2. to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
  3. to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
  4. to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and
  5. to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.


The original authors of Section 230 - Representative Wyden and Representative Cox - both wrote articles revisiting their intent behind the language of Section 230 in 1996. Both also commented on their intent in official and unofficial contexts since the law’s enactment.

Cox has commented on the intent of Section 230 in an op-ed for Real Clear Politics and in an amicus curiae for a legal case related to Section 230 protections for platforms such as AirBnb and Homeaway.[9][10] He has argued that Section 230 was designed “as a reproach” to the Communications Decency Act, which he has described as an “unconstitutional attempt to restrain free speech on the Internet.”[9] Both pieces of legislation ended up being passed by Congress simultaneously in 1996 as part of the Telecommunications Act of 1996 even though they presented differing views on how to regulate online content. Wyden and Cox both voted in favor of the Telecommunications Act of 1996.[11] Federal courts struck down the CDA as unconstitutional later that same year but left Section 230 intact.[12]


Cox has pointed to two court cases in New York as the legal and policy genesis of Section 230:[9]

“ In New York, a judge had held that one of the then-two leading Internet platforms, Prodigy, was liable for defamation because an anonymous user of its site had claimed that an investment bank and its founder, Jordan Belfort, had committed securities fraud. … In holding Prodigy responsible for content it didn’t create, the court effectively overruled a prior New York decision involving the other major U.S. Internet platform at the time, CompuServe. The previous case held that online service providers would not be held liable as publishers. In distinguishing Prodigy from the prior precedent, the court cited the fact that Prodigy, unlike CompuServe, had adopted content guidelines. These requested that users refrain from posts that are “insulting” or that “harass other members” or “are deemed to be in bad taste or grossly repugnant to community standards.” The court further noted that these guidelines expressly stated that although “Prodigy is committed to open debate and discussion on the bulletin boards ... this doesn't mean that ‘anything goes.[13] ”
“ CompuServe, in contrast, made no such effort. On its platform, the rule was indeed “anything goes.” As a user of both services, I well understood the difference. I appreciated the fact that there was some minimal level of moderation on the Prodigy site. While CompuServe was a splendid service and serious users predominated, the lack of any controls whatsoever was occasionally noticeable and, I could easily envision, bound to get worse.[13] ”
“ If allowed to stand, this jurisprudence would have created a powerful and perverse incentive for platforms to abandon any attempt to maintain civility on their sites. And a legal standard that protected only websites where “anything goes” from unlimited liability for user-generated content would have been a body blow to the Internet itself. Ron [Wyden] and I were determined that good faith content moderation should not be punished, and so the Good Samaritan provision in the Internet Freedom and Family Empowerment Act was born.[13] ”


Wyden made a comparable argument in an op-ed for CNN:[14]

“ Republican Congressman Chris Cox and I wrote Section 230 in 1996 to give up-and-coming tech companies a sword and a shield, and to foster free speech and innovation online.[13] ”
“ Essentially, 230 says that users, not the website that hosts their content, are the ones responsible for what they post, whether on Facebook or in the comments section of a news article. That's what I call the shield.[13] ”
“ But it also gave companies a sword so that they can take down offensive content, lies and slime — the stuff that may be protected by the First Amendment but that most people do not want to experience online. And so they are free to take down white supremacist content or flag tweets that glorify violence (as Twitter did with President Trump's recent tweet) without fear of being sued for bias or even of having their site shut down.[13] ”
“ Without Section 230, sites would have strong incentives to go one of two ways: either sharply limit what users can post, so as to avoid being sued, or to stop moderating entirely, something like 8chan — now operating under the name 8kun — where anonymous users can post just about anything and speech supporting racism and sexism is common.[13] ”


The original House Conference Report on the Telecommunications Act of 1996 pointed specifically to the legal precedent outlined by Cox and noted the goal of providing “protections from civil liability for providers or users of an interactive computer service for actions to restrict or to enable restriction of access to objectionable online material.”[15]

“ One of the specific purposes of this section is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that such decisions create serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.[13] ”

Support of and opposition to Section 230

Support

Defenders of Section 230 have argued that the law is necessary to protect free speech on the internet while also allowing providers and online companies to moderate speech when necessary. The 501(c)(3) nonprofit Electronic Frontier Foundation (EFF), for example, describes Section 230 as “one of the most valuable tools for protecting freedom of expression and innovation on the Internet.”[16] EFF states that without Section 230 online companies such as YouTube, Facebook, Yelp, or Twitter would, “likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online.”

Organizations such as the ACLU have made similar arguments: “When Congress enacted Section 230, it wisely recognized that holding websites legally responsible for user-generated content would cripple the rapidly developing online world. Section 230 defines Internet culture as we know it: It’s the reason why websites can offer platforms for critical and controversial speech without constantly worrying about getting sued.”[17]

Another supportive view, as articulated by U.S. Naval Academy Professor Jeff Kosset, proposes that Section 230 allows internet users to make their own choices regarding internet content without government regulation. “User empowerment recognizes that some platforms may moderate more than others and users will decide which to gravitate toward. This framing ultimately favors the free market over government regulation,” wrote Kosseff in a 2019 article for Lawfare.[18] Steven Greenhunt of the R Street Institute has echoed this sentiment, writing in a 2020 article, “Section 230 was a grand achievement because it allows the marketplace of ideas to flourish—and enables individuals to choose the sites that conform to their preferences.”[19]

Opposition

Critics of Section 230 have claimed that it gives online companies too much flexibility in choosing when to moderate content and allows these companies to engage in selective censorship. This first critique holds that Section 230 has exempted online companies from the responsibility of moderating or removing content deemed false, offensive, or harmful. President Joe Biden (D), for example, told The New York Times that Section 230 should be revoked and that Facebook and its founder Mark Zuckerberg should be held civilly liable for, “propagating falsehoods they know to be false.”[20] Senator Bernie Sanders (I) has made similar comments, arguing, “tech giants and online platforms should not be shielded from responsibility when they knowingly allow content on their platforms that promotes and facilitates violence. Section 230 was written well before the current era of online communities, expression, and technological development, so [I] will work with experts and advocates to ensure that these large, profitable corporations are held responsible when dangerous activity occurs on their watch, while protecting the fundamental right of free speech in this country and making sure right-wing groups don’t abuse regulation to advance their agenda.”[21] A paper in the Georgetown Law Technology Review explored these criticisms in more detail, arguing that Section 230 has allowed for sextrafficking on the internet, websites that are, “responsible for defamatory posts that have damaged lives and careers,” and formally-designated terrorist organizations to maintain an online presence.[22]

An additional critique argues that Section 230 has served as protection for selective censorship. Former President Donald Trump (R) has argued that Section 230 has allowed social media companies to selectively censor or remove conservative content and perspectives from their websites. In May 2020, President Trump (R) issued an executive order seeking to narrow the scope of Section 230.[23] Later that year, Attorney General Bill Barr issued a proposal to amend Section 230, arguing that online platforms have changed how they operate since passage of the law in 1996: “They no longer function as simple forums for posting third-party content, but use sophisticated algorithms to suggest and promote content and connect users. Platforms can use this power for good to promote free speech and the exchange of ideas, or platforms can abuse this power by censoring lawful speech and promoting certain ideas over others.”[24] During his presidency, President Trump actively called for the repeal of Section 230 and vetoed the National Defense Authorization Act of 2020 because it did not repeal Section 230.[25]

Missouri Senator Josh Hawley (R) has criticized Section 230 along similar lines and introduced legislation in 2019 to change the law. In June 2019, he stated, “With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship. Unfortunately, and unsurprisingly, big tech has failed to hold up its end of the bargain. There’s a growing list of evidence that shows big tech companies making editorial decisions to censor viewpoints they disagree with.”[26] His legislation proposed removing the liability protections provided by Section 230 for online companies unless they agreed to external audits to affirm their algorithms and content-removal procedures were not biased against certain political viewpoints.

See also

Footnotes

  1. ↑ Federal Communications Commission, "Telecommunications Act of 1996," accessed May 24, 2021
  2. ↑ 2.0 2.1 Congress.gov, "S.652 - Telecommunications Act of 1996," accessed May 24, 2021
  3. ↑ PBS Frontline, "Porn and Politics in a Digital Age," accessed May 24, 2021
  4. ↑ Middle Tennessee State University: The First Amendment Encyclopedia, "Communications Decency Act of 1996 (1996)," accessed May 24, 2021
  5. ↑ Federal Communications Law Journal, "The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway," accessed May 24, 2021
  6. ↑ Congress.gov, "H.R.1978 - Internet Freedom and Family Empowerment Act," accessed May 24, 2021
  7. ↑ Oyez, "Reno v. ACLU," accessed May 24, 2021
  8. ↑ Congres.gov, "Telecommunications Act of 1996," accessed May 24, 2021
  9. ↑ 9.0 9.1 9.2 Real Clear Politics, "Policing the Internet: A Bad Idea in 1996 -- and Today," accessed May 24, 2021
  10. ↑ netchoice.org, "La Park Amicus Brief," accessed May 24, 2021
  11. ↑ United States House of Representatives, "Roll Call 25 | Bill Number S. 652," accessed May 24, 2021
  12. ↑ Cornell Law School: Legal Information Institute, "Janet Reno, Attorney General of the United States, et al., Appellants v. American Civil Liberties Union et al.," accessed May 24, 2021
  13. ↑ 13.0 13.1 13.2 13.3 13.4 13.5 13.6 13.7 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  14. ↑ CNN: Business, "Perspectives: I wrote this law to protect free speech. Now Trump wants to revoke it," accessed May 24, 2021
  15. ↑ Congress.gov, "H. Rept. 104-458 - Telecommunications Act of 1996," accessed 24 May, 2021
  16. ↑ Electronic Frontier Foundation, "Section 230 of the Communications Decency Act," accessed May 24, 2021
  17. ↑ ACLU, "Communications Decency Act Section 230," accessed May 24, 2021
  18. ↑ Lawfare, "What’s in a Name? Quite a Bit, If You’re Talking About Section 230," accessed May 24, 2021
  19. ↑ reason.com, "The Bipartisan Push To Gut Section 230 Will Suppress Online Speech," accessed May 24, 2021
  20. ↑ The New York Times, "Joe Biden: Former vice president of the United States," accessed May 24, 2021
  21. ↑ Vox, "Should social media companies be legally responsible for misinformation and hate speech? 2020 Democrats weigh in," accessed May 24, 2021
  22. ↑ Citron, Danielle Keats and Wittes, Benjamin, "The Problem Isn’t Just Backpage: Revising Section 230 Immunity," accessed May 24, 2021
  23. ↑ Congressional Research Service, "UPDATE: Section 230 and the Executive Order on Preventing Online Censorship," accessed May 24, 2021
  24. ↑ Office of the Attorney General, "Department of Justice's Review of Section 230 of the Communications Decency Act of 1996: Cover Letter," accessed May 24, 2021
  25. ↑ Council on Foreign Relations, "Trump and Section 230: What to Know," accessed May 24, 2021
  26. ↑ Josh Hawley: U.S. Senator for Missouri, "Senator Hawley Introduces Legislation to Amend Section 230 Immunity for Big Tech Companies," accessed May 24, 2021
Retrieved from "https://ballotpedia.org/wiki/index.php?title=Section_230_of_the_Communications_Decency_Act_of_1996&oldid=8570770"