It's impossible to predict how ecommerce merchants and social media would respond to a repeal of Section 230, which protects them from liability for things posted by website users. But the consequences of such a drastic policy change could be significant.

Is the end near for Section 230? And, if so, could its repeal dramatically change social media and ecommerce as we know it? Maybe, but maybe not.

Section 230 protects websites, including ecommerce sites and other online platforms, from legal responsibility for most of the content provided by their users—with a few exceptions, such as violations of federal criminal law and intellectual property law. The provision also protects websites from liability arising from their decisions to moderate content. However, Section 230 does not safeguard content created by the publishers of websites and social media platforms from defamation or other claims.

Because of Section 230—part of the Communications Decency Act of 1996—Google’s YouTube video-sharing site doesn’t have to pre-screen the millions of videos uploaded daily. And Facebook doesn’t have to read every comment. Such platforms can let users post freely and clean things up later if something bad happens.

Section 230 has critics among both liberals and conservatives, but for different reasons, says Jeff Kosseff, assistant professor of cybersecurity law at the United States Naval Academy and author of “The 26 Words That Created The Internet,” a book about Section 230.

“Some critics—often from the left—argue that large platforms do not moderate enough harmful content. Other critics—often from the right—argue that large platforms moderate too much speech, particularly speech from a conservative point of view,” Kosseff says. “Both sides want to use Section 230 reform to influence how and when platforms moderate user speech.”

advertisement

It’s impossible to predict how Amazon.com Inc. (No. in the 2020 Digital Commerce 360 Top 1000) and other ecommerce merchants would react to a repeal of Section 230, Kosseff says. That’s because the modern internet has always existed with Section 230—passed in February 1996—in place. But the consequences could be significant, he says.

“It’s quite possible that, without the certainty that Section 230 provides, websites would not want to take the risk of allowing content such as user reviews, as they do not want to face the expense of litigating defamation claims,” Kosseff says.

Beyond that, he says, courts and legal experts are split on whether Section 230 protects sites like Amazon from product liability claims arising from products sold by third parties on their platforms. So, if ecommerce sites lost Section 230 protections—either by repeal or due to a court ruling—there’s a chance that would make it more difficult for third-party sellers to find platforms to sell their goods. That’s because marketplaces like the one run by Amazon would not want to risk the potential liability.

Tech CEOs go to Capitol Hill

Recently, Section 230 was the subject of an Oct. 28 U.S. Senate Commerce Committee hearing featuring testimony from three technology heavy hitters: Twitter Inc. CEO Jack Dorsey, Facebook CEO Mark Zuckerberg and Sundar Pichai, CEO of Alphabet Inc. and its subsidiary Google LLC. Each CEO appeared remotely.

At the hearing, Republican senators bluntly accused the tech three CEOs of abusing their power over political speech.

advertisement

“Who the hell elected you and put you in charge of what the media are allowed to report?” Sen. Ted Cruz, a Republican from Texas, asked Twitter CEO Jack Dorsey during the hearing.

Sen. Roger Wicker of Mississippi, a Republican and chair of the committee, said: “The time has come for that free pass to end,” referring to Section 230.

Republicans criticized tech companies’ moderation of U.S. President Donald Trump’s posts, while Democrats said they feared the hearing was a Republican attempt to influence the CEOs days before the election.

“They seem to want to bully and browbeat the platforms here to try and tilt them in President Trump’s favor,” Sen. Richard Blumenthal, a Democrat from Connecticut, said. “The timing seems inexplicable except to try and game the refs.”

The hearing eventually turned to the actual language of Section 230, which grants platforms the ability to remove content they deem lewd, harassing or “otherwise objectionable,” among other criteria, from their services as long as they act “in good faith.” GOP lawmakers have said the language is too vague and protects the removal of political discourse.

advertisement

Sen. Shelley Moore Capito, a Republican from West Virginia, asked the executives how they define the phrase “otherwise objectionable.” Multiple Republican lawmakers have introduced bills seeking to narrow the phrase, only allowing companies to remove categories of content such as those that promote terrorism or self-harm.

Zuckerberg argued that the current language enables Facebook to capture more content that might be bullying or harassment, and Pichai said companies need flexibility. Many of Facebook and Twitter’s rules, for example, are worded in ways that give the company more leeway to address new and unexpected issues.

Capito also questioned Dorsey and Zuckerberg’s argument that repealing Section 230 would hurt startups. “How many small innovators and what kind of market share could they possibly have when we see the dominance of the three of you?” she challenged.

Zuckerberg said that Section 230 was instrumental when he started Facebook. “If we were subject to a larger number of content lawsuits because 230 didn’t exist, that would have likely made it prohibitive for me as a college student in a dorm room to get started with this enterprise,” he said.

The presidential election was a thread throughout the hearing, often cited as the topic for examples of good and bad content moderation. Senator Tom Udall, a Democrat from New Mexico, asked all three executives if Russia and other foreign countries continue to use their platforms to influence the election. All three CEOs said yes.

advertisement

Twitter and Facebook have both recently removed networks of accounts that originated out of Iran and Russia. Facebook now makes monthly announcements about the networks it removes.

One idea that has been floated is to create a single system for moderating all the platforms together, ensuring they all play by the same rules. But the three tech companies have no incentives to create a shared system for identifying and moderating harmful information, said Sridhar Ramaswamy, the former head of the advertising business at Alphabet Inc.-owned Google, in a recent interview with Bloomberg News.

He argued that any new system shouldn’t be restricted to the largest tech companies but should be deployed for the internet more broadly. “An outcome that gives any more responsibility to small teams is not a great outcome,” said Ramaswamy, who now runs the startup Neeva. “Because that then becomes a massive moat that no one else can cross.”

Despite the rancor, Kosseff said the Oct. 28 Senate hearing was a good first step toward getting more transparency about how web giants moderate user content. “These companies have enormous influence over Americans’ ability to speak online, and in the past, they have been far too opaque about their policies and practices,” he says.

Here’s what could happen next

Regardless of the presidential election results, Section 230 appears to be in danger because both presidential candidates have discussed repealing it.

advertisement

On Oct. 6, President Donald Trump Tweeted “REPEAL SECTION 230!!!”

On May 28, Trump issued an executive order intended to fight “online censorship.” The order says: “Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike.”

advertisement

The order also says the Federal Trade Commission “shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce… Such unfair or deceptive acts or practice may include practices by entities covered by Section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.”

Should former Vice President Joe Biden win the White House, Section 230 probably would not be safer. In December 2019, Biden told the New York Times’ editorial board that “Section 230 should be revoked immediately.” To demonstrate why Biden said Facebook was “propagating falsehoods, they know to be false.”

As the vote counts continue in the presidential race, the fate of Section 230 is likely far from a top-of-mind issue for most Americans. But, Kosseff says, it’s hard to see what much of the web would look like if it goes away.

Favorite