WACKER: Is Congress About To Destroy The Internet?

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Mike Wacker Contributor
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Is this the end of Section 230, a law that shields tech companies from liability for the third-party content they host? Will the sky fall without 230? 

Recently, the House Energy and Commerce Committee proposed a bipartisan bill that would sunset Section 230 at the end of 2025: “Our bill gives Big Tech a choice: Work with Congress to ensure the internet is a safe, healthy place for good, or lose Section 230 protections entirely.”

While the 230 “experts” will have a lot to say on this topic, as an engineer, I prefer to start with real-world examples, not abstract talking points that sound nice on Twitter but don’t work in real life. 

Let’s start with how Section 230 affected the child-porn victims in Doe v. Twitter (N.D. Cal. 2021).

In a nightmare for any parent, the victims encountered a perpetrator on Snapchat who pretended to be a 16-year-old girl. After this perpetrator enticed the victims to send nude photos, they extorted the victims to send even more explicit content. The perpetrator then posted this child porn on Twitter; the victims learned about it from their classmates.

Despite numerous reports from multiple users, Twitter did nothing — even after asking for and receiving a copy of one victim’s ID. They only changed their tune when a federal agent intervened. 

The victims then sued, credibly alleging that Twitter violated federal child porn laws. Twitter, for its part, did not contest those allegations. They merely argued that Section 230 barred the victims’ legal claim. The court agreed.

Yet when Congress tried to fix that problem with EARN-IT — a bill that would carve federal and state child-porn laws out of 230 — the 230 “experts” reacted like it was a five-alarm fire, resorting to a dirty playbook of tactics that rivaled the nastiness of the net neutrality debates.

Groups like the Taxpayers Protection Alliance spread four-Pinocchio lies about EARN-IT, such as this whopper: “If platforms choose not to encrypt data, the bill requires them to track and identify all users for age verification purposes.” This claim is so far from the truth that the only appropriate response is the “everyone in this room is now dumber” rant from “Billy Madison.”

And may God have mercy on the souls of the 230 “experts” who consider it wise to resort to dirty tactics on a bill meant to stop child porn. Even the Big Tech companies would never tarnish their brand by directly engaging in those sorts of tactics. Instead, they do it indirectly via their trade associations like NetChoice. If it feels like Congress is just throwing its hands up in the air with this proposal to sunset 230, it would be easy to understand why.

So what happens if Section 230 disappears not just for child-porn laws, but for every law? Would the sky fall? No. Not at all. Even without 230’s shield, you still need a sword: a valid cause of action. If you can’t prove that a tech company violated the law, a lawsuit is dead on arrival, with or without 230.

In reality, many frivolous lawsuits that get quickly dismissed due to 230 would still get quickly dismissed without 230, as they don’t credibly allege a violation of any law. Under federal civil procedure, the defendant will win an early motion to dismiss under rule 12(b)(6) if the plaintiff fails to state a claim; this is the same stage at which lawsuits typically get dismissed due to 230.

Claims that censorship of conservatives will increase without 230 are also balderdash. No law makes “disinformation” or “hate speech” illegal — and such a law would violate the First Amendment anyway. There are laws for real problems like child porn, though. Realistically, without 230, there would be more moderation of real problems and less censorship of fake problems.

(The 230 “experts” will quickly point out here that 230 has an exception for federal criminal law. What they often leave out, though, is that this exception only applies to criminal prosecutions by law enforcement. As the child-porn victims in Doe v. Twitter already know, this exception does not apply to civil lawsuits for the same conduct.)

Let’s also dispense with the myth that Section 230 is the “Internet’s First Amendment.” Even without 230, the actual First Amendment would still apply. As a corollary, even without 230, tech companies could not be held strictly liable for every piece of third-party content that they host; strict liability is already unconstitutional per Smith v. California (1959).

If we do repeal and replace 230, though, what should we replace it with? Conservatives, after all, are well-known for using the phrase “repeal and replace” without figuring out the “replace” part. In tech policy, two themes will frequently recur. The first common-sense theme can be summarized in one sentence: “If it’s illegal offline, it should be illegal online.”

The second theme is a uniform national policy. Simply put, the difference between a local coffee shop and a tech startup is that data frequently crosses state lines and coffee does not. As a result, tech companies — both big and small — can get stuck with a patchwork of state laws, which can impose a significant regulatory burden. In a scenario straight out of the song “Hotel California,” if a startup checks out of California and moves to Florida, it may not be able to leave California’s laws behind.

These two themes point to a simple solution: Section 230 should not apply to any federal law. This compromise would protect tech companies from drowning in an endless sea of conflicting state laws, while ensuring that at the federal level, anything that is illegal offline will be illegal online. (Section 230 and state law is a much more nuanced topic.)

In a world where citizens’ voices are often silenced by tech companies’ woke trust and safety departments, things can only get better when those companies are instead governed by laws created by democratic institutions that give every citizen a voice.

Mike Wacker is a software engineer and technologist who has previously served as tech fellow in Congress. Follow him on X.com at @m_wacker.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.