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What Would Removing Section 230 Of The Communications Decency Act Do To The Internet?

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Hanna Panreck Contributor
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Section 230 of the Communications Decency Act (CDA) protects websites from being liable for the speech of their users, but what would removing or substantially reforming it do?

The CDA was written in 1996 and includes Section 230, which protects “freedom of expression and innovation on the internet,” according to the Electronic Frontier Foundation (EFF).

“CDA is a federal law that prevents websites, blogs and forums from being held responsible for the speech of their users,” an EFF infographic reads.

The Department of Justice announced June 17 that some areas of Section 230 could be reformed. Specifically, the reforms would limit the broad protections given to tech giants like Google.

The proposed changes would need to be passed through Congress and identify four areas the DOJ hopes to change or clarify.

Without Section 230, social media companies like Facebook or Twitter and other online blogs or intermediaries would bear the responsibility of what users, commenters, posters say or do. (RELATED: Google To Ban Ads On The Federalist After NBC News Raises Concerns About George Floyd Protest Articles)

“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,” the law reads.

This means that “online intermediaries” that post, repost or allow speech are protected against several different laws that would otherwise hold them legally responsible for what was said or done, per the EFF.

The protected intermediaries include regular internet service providers (ISPs) and “any online service that publishes third party content.”

It also means that they cannot be forced to censor their content.

Without Section 230, online forums like Facebook, Twitter, Reddit and media outlets as well could be sued for anything posted by a commenter that might cross the line.

In addition to an increase in legal costs, the EFF suggests that intermediaries would end up having to charge users to “protect” their right to free speech.

ISPs would be forced to censor content, which means users would have different kinds of access to certain websites, depending on your ISP.

The DOJ suggested under the “Incentivizing Online Platforms to Address Illicit Content” category carve-outs for “bad Samaritans,” child abuse, terrorism and stalking and case-specific actual knowledge and court judgements.

The DOJ statement reads:

Bad Samaritan Carve-Out. First, the Department proposes denying Section 230 immunity to truly bad actors.  The title of Section 230’s immunity provision—“Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material”—makes clear that Section 230 immunity is meant to incentivize and protect responsible online platforms.  It therefore makes little sense to immunize from civil liability an online platform that purposefully facilitates or solicits third-party content or activity that would violate federal criminal law.

The DOJ also suggests reforms in “promoting open discourse and greater transparency,” “promoting competition,” “clarifying Federal Government enforcement capabilities to address unlawful content.”

President Donald Trump signed an executive order in May that instructed the Federal Communications Commission (FCC) to regulate how social media companies can remove certain content from their sites while maintaining the Section 230 immunity, according to CNBC. The order came after Twitter fact-checked two of the president’s tweets.

He also told the Federal Trade Commission to act against companies participating in “‘deceptive’ acts of communication,” per CNBC.

“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey on the internet,” the executive order says, according to CNN. “This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.”

Google has come under fire recently after NBC news raised concerns about two conservative leaning websites, the Federalist and Zero Hedge. Google threatened to ban both sites from its ad platform, Google ads, but has only demonetized Zero Hedge.

“Google has banned ZeroHedge, a far-right website that often traffics in conspiracy theories, from its advertising platform over policy violations found in the comments section of stories about recent Black Lives Matter protests,” the NBC report reads.

Google disputed NBC’s initial claim that the Federalist was also demonetized.(RELATED: In Scramble Amid Backlash, NBC, Google Both Release Contradictory Messages)

“The action taken against ZeroHedge and the notification to the Federalist was related to the comments section of the sites. The comments sections consistently violated our dangerous and derogatory policy,” a Google spokesperson told the Daily Caller News Foundation.

Several conservatives have spoken out against Section 230 following the confusion with Google and the Federalist.

Historically, courts have upheld Section 230. In 2018, Congress successfully introduced and passed the Fight Online Sex Trafficking Act (FOSTA), which created a carve out to Section 230 immunity for ads that promote sex work, per CNBC.

Democratic Oregon Sen. Ron Wyden voted against FOSTA in 2018 and has continued to voice support for Section 230 following Trump’s executive order.

“And so without 230, I think that a lot of sites would choose not to moderate at all, and thus avoid responsibility for anything their users post. It goes without saying that there would be a lot more false, dangerous content out there, from revenge porn to posts supporting white supremacy. The internet would become the cesspool that anti-230 activists claim it is today,” Wyden, a coauthor of the Section 230 law, wrote in an op-ed for CNN.

Josh Blackman, a law professor at the South Texas College of Law in Houston, told the Daily Caller News Foundation in 2018 that FOSTA’s biggest obstacle would be Section 230.

“The next Congress may be able to muster bipartisan votes to kill Section 230. But I am skeptical they can adopt far-reaching privacy legislation. Once the preemption argument is gone, states will adopt their own European-style privacy laws. Tech companies would face a patchwork of fifty-one extremely imperfect solutions,” he wrote for Reason in May.

President and CEO of the Internet Association Jon Berroya has also recently spoke out against Section 230 reform. The Internet Association is a lobbying group that represents internet companies such as Google and Amazon.

“Rolling back Section 230 protections will make it harder, not easier, for online platforms to make their platforms safe. The world before Section 230 was one where platforms faced liability for removing things like spam or profanity,” Berroya said in a press release. “Weakening Section 230 brings us closer to that world. The threat of litigation for every content moderation decision would hamper IA member companies’ ability to set and enforce community guidelines and quickly respond to new challenges in order to make their services safe, enjoyable places for Americans.”