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section 230
Section 230 Is a Civil Rights Statute
Without Section 230’s protections, Americans would know less about police brutality, allegations of sexual abuse by the powerful, or the options for women seeking an abortion in states that allow them. The measure must be protected.
Feb 17, 2024
Black History Month is a powerful reminder that each American, no matter their stature, has an ability to affect great change. That’s due in large part to the free speech protections afforded us under the First Amendment. During the 1960s, social justice advocates exercised their free speech rights through rallies, protests, and speeches, paving the way for the passage of the Civil Rights Act and Voting Rights Act.
Today, it’s far easier to advance social progress through online platforms, thanks to a federal statute that fosters open inquiry, debate, and commentary.
That statute—Section 230 of the Communications Decency Act—gives platforms legal immunity for what third parties post. For example, Yelp is not liable for anything written in its reviews, no matter how scathing they are. This immunity has allowed ideas on the Internet to explode, leading to breakthroughs that have improved our lives.
Yet Section 230 is now under bipartisan siege, with dozens of bills in Congress proposing to reform it and presidential candidates calling for its revocation because they believe online platforms have either become too political or engage in censorship.
In fact, the U.S. government allegedly threatened to revoke Section 230 immunity from social media platforms if they didn’t take down what the government deemed misinformation about Covid and vaccines. The charges are at the center of a legal dispute that the U.S. Supreme Court is set to hear during their current session.
Section 230 is now under bipartisan siege, with dozens of bills in Congress proposing to reform it and presidential candidates calling for its revocation because they believe online platforms have either become too political or engage in censorship.
Advocates for reform or revocation of Section 230 should be careful what they wish for. The immunity they currently provide removes the fear of liability, resulting in more speech, which has been advantageous for three of the major civil rights issues of the current era.
The first is the Black Lives Matter Movement. Legal immunity for social platforms has enabled African Americans and other minorities to call attention to the sometimes-deadly realities associated with police interactions in their communities. In the wake of live streaming and online postings of police brutality and the accompanying Black Lives Matter protests, some states attempted to criminalize the recording or posting of encounters with law enforcement online. Thanks to Section 230 protections, users could continue posting video and commentary about policing and BLM.
The second is the #MeToo Movement. Section 230 has allowed women to raise awareness about workplace sexual harassment. In the absence of immunity, powerful alleged abusers could threaten the platforms with legal liability for defamation and have claims about them, even true ones, to be taken down.
Finally, there’s abortion. Just four days after the Supreme Court ruled that abortion is not protected by the federal Constitution, South Carolina legislators proposed a law making it “unlawful to aid, abet, or conspire with someone to procure an abortion,” including providing information about abortion “by Internet or other mode of communication.” Without Section 230, any social media platform, website, or Internet service provider that hosted such information could potentially be criminally liable under such a statute.
Consider what would happen if Section 230 did not exist. If the government or another powerful entity wanted to suppress speech it doesn’t like, it could either take legal action against the speaker themselves or the distributor of the speech.
In most cases, it’s far more effective to go after the distributor. Threatening the author of an offensive book might cause the author to self-censor, but there is no guarantee. Threatening Barnes & Noble or Amazon is more effective because there is little economic incentive for them to continue carrying the book with the threat of government action.
Further, because distributors disseminate the work of many authors, it can compound the likelihood that they will censor more speech on the same subject. The Supreme Court has recognized that permitting distributor-level threats gives the government a potential end-around the First Amendment since it results in censorship of the speaker.
Without Section 230’s protections, Americans would know less about police brutality, allegations of sexual abuse by the powerful, or the options for women seeking an abortion in states that allow them. Social media users, particularly those in underserved, underrepresented, and otherwise resource-poor communities, would be less able to discuss those issues online.
Social media is not perfect. But the immunity provided by Section 230 makes it better, not worse.
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Digital Rights Groups Applaud US Supreme Court for Protecting Free Speech Online
"Today's decisions should be commended for recognizing that the rules we apply to the internet should foster free expression, not suppress it," said the deputy director of ACLU's National Security Project.
May 18, 2023
Civil liberties advocates on Thursday praised the U.S. Supreme Court for a pair of unanimous rulings that they say uphold the right to free speech on online platforms.
The high court's decisions in Twitter v. Taamneh and Gonzalez v. Google represent "a win for free expression on the internet," the ACLU tweeted.
Alongside its partners, the ACLU "filed amicus briefs in both cases urging the court to ensure online platforms are free to promote, demote, and recommend content without legal risk in order to protect political discourse, cultural development, and intellectual activity," the group noted in a statement.
"Free speech online lives to fight another day," said Patrick Toomey, deputy director of ACLU's National Security Project. "Twitter and other apps are home to an immense amount of protected speech, and it would be devastating if those platforms resorted to censorship to avoid a deluge of lawsuits over their users' posts. Today's decisions should be commended for recognizing that the rules we apply to the internet should foster free expression, not suppress it."
According to ACLU's statement:
In Twitter v. Taamneh, the plaintiffs claimed that Twitter was liable for allegedly "aiding and abetting" an attack in Istanbul by ISIS because Twitter failed to adequately block or remove content promoting terrorism — even though it had no specific knowledge that any particular post furthered a terrorist act. The court held that hosting, displaying, and recommending videos, without more, is not aiding and abetting terrorism.
As the ACLU's amicus brief in Twitter v. Taamneh explained, if the Supreme Court allowed the 9th U.S. Circuit Court of Appeals' startlingly broad interpretation of the Anti-Terrorism Act to stand, online intermediaries—like internet service providers, social media platforms, publishers, and other content distributors—would be forced to suppress the First Amendment-protected speech of many of their users. The brief explained that, given the vast scale of speech occurring on platforms like Twitter every day, online intermediaries would be compelled to use blunt content moderation tools that over-restrict speech by barring certain topics, speakers, or types of content in order to avoid claims that they went too far in making that information available to an interested audience. Even today, platforms frequently take down content mistakenly identified as offensive or forbidden, for example, by confusing a post about a landmark mosque with one about a terrorist group.
In Gonzalez v. Google, the court noted that in light of its decision in Twitter v. Taamneh, "little if any" of the plaintiffs' case remained viable. It was therefore unnecessary to address the question of whether Section 230 of the Communications Decency Act immunized the platform's recommendation algorithms. The court remanded the case to the 9th U.S. Circuit Court of Appeals to determine whether any part of the plaintiffs' argument could move forward in light of the Twitter ruling.
David Greene, director of civil liberties at the Electronic Frontier Foundation (EFF), also welcomed the court's rulings in both cases.
EFF is "pleased that the court found that an online service cannot be liable for terrorist attacks merely because their services are generally used by terrorist organizations the same way they are used by millions of organizations around the globe," Greene said in a statement.
He added that EFF is "pleased that the court did not address or weaken Section 230, which remains an essential part of the architecture of the modern internet and will continue to enable user access to online platforms."
Section 230 is a federal liability shield that generally prevents social media and other websites from facing defamation lawsuits or being held accountable for third-party content generated by users or paid advertisers. The immunity provision has come under increased scrutiny from many members of Congress in both major parties.
One countervailing opinion about the court's decision to not reexamine Section 230 came from the Real Facebook Oversight Board, a coalition of researchers and advocates who seek to counter the harms associated with the profit-maximizing algorithms used by Facebook and Instagram, both of which are now owned by Meta.
"Meta wasn't on trial today in the Supreme Court, but their rapacious business model was," the group said in a statement. "In no surprise, the extremist U.S. Supreme Court chose profit over privacy and safety. More than ever, U.S. lawmakers must act to pass sweeping, meaningful regulation of Big Tech—before more users are harmed or worse by hate speech that platforms won't and can't stop."
Sen. Ron Wyden (D-Ore.), however, echoed the assessment shared by the ACLU and EFF, calling the court's decision to leave Section 230 untouched "good news."
"Despite being unfairly scapegoated for everything wrong with the internet, Section 230 remains vitally important to protecting online speech," argued Wyden, who co-wrote the 1996 statute with former Rep. Chris Cox (R-Calif.). "My focus remains helping end abusive practices by tech companies while protecting freedom of information online."
According to Politico, the high court's decisions "mark a major win for the tech industry, which has argued that narrowing Section 230 could be disastrous for the internet if platforms could be sued over content-moderation decisions. But the resolution leaves the door open to future showdowns—potentially in Congress—over the breadth of the legal protection the internet firms enjoy."
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ACLU, Allies Warn Internet Bills 'Would Undermine Free Speech, Privacy, and Security'
While these bills' supporters aim to hold tech giants accountable for not protecting vulnerable communities, one expert warned, "increasing censorship and weakening encryption would not only be ineffective at solving these concerns, it would in fact exacerbate them."
May 04, 2023
As the U.S. Senate Judiciary Committee considered a series of bills on Thursday, the ACLU and other digital rights advocates warned against federal legislation that would promote censorship, disincentivize protecting users with strong encryption, and expand law enforcement access to personal data.
A trio of ACLU policy experts sent a letter to the committee about three bills: the Cooper Davis Act, the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act, and the Strengthening Transparency and Obligation to Protect Children Suffering from Abuse and Mistreatment (STOP CSAM) Act.
"These bills purport to hold powerful companies accountable for their failure to protect children and other vulnerable communities from dangers on their services when, in reality, increasing censorship and weakening encryption would not only be ineffective at solving these concerns, it would in fact exacerbate them," said one of the experts, ACLU senior policy counsel Cody Venzke.
\u201cThe EARN IT Act claims to make the Internet safer for children, but instead invites constant government surveillance.\n\nThis is a big threat to our privacy and our right to free speech online \u2014 we can't let it pass.https://t.co/vETVy5jZGC\u201d— ACLU (@ACLU) 1683223921
Named for a Kansas teenager who died after taking a pill laced with fentanyl, the Cooper Davis Act (S. 1080) would require social media companies and other communication service providers to give federal agencies information about illicit activity related to the synthetic opioid on their platforms.
The EARN IT Act (S. 1207)—which targets Section 230 of the Communications Decency Act—would remove tech companies' blanket liability protection for civil or criminal law violations related to online child sexual abuse material and establish a national commission to craft voluntary "best practices" for providers.
Sponsored by committee Chair Dick Durbin (D-Ill.), the STOP CSAM Act (S. 1199) would, among other provisions, enable survivors of online child sexual exploitation to bring a civil cause of action against tech companies that promoted or facilitated the abuse.
The ACLU warns that the proposals "would undermine free speech, privacy, and security." As the letter explains:
First, they incentivize platforms to monitor and censor their users' speech and interfere with content moderation decisions. Second, they disincentivize platforms from providing end-to-end encrypted communications services, exposing the public to abusive commercial and government surveillance practices and as a result, dissuading people from communicating with each other electronically about everything from healthcare decisions to business transactions. And third, they expand warrantless government access to private data. As longtime champions of privacy, free speech, and an open internet, we strongly urge you to vote against reporting these bills out of committee.
Despite the ACLU's argument that "there are other avenues to protect children, privacy, and safety online that do not lead to increased surveillance, censorship, and policing," the committee on Thursday unanimously advanced the EARN IT Act, spearheaded by Ranking Member Lindsey Graham (R-S.C.).
As Common Dreams reported Tuesday, the Center for Democracy & Technology led 132 other groups—including the ACLU—in a letter to the panel which says: "We support curbing the scourge of child exploitation online. However, EARN IT will instead make it harder for law enforcement to protect children. It will also result in online censorship that will disproportionately impact marginalized communities."
Fight for the Future, another signatory to that letter, tweeted Thursday that "the dangerous, anti-encryption #EARNITAct passed out of committee this morning. We know this bill—it's back from the dead to restrict the internet and make everyone less safe online."
The group also thanked Sen. Alex Padilla (D-Calif.) for entering the coalition's letter about the EARN IT Act into the record.
Representatives from the ACLU, Electronic Frontier Foundation, Equality Arizona, Fight for the Future, Reframe Health and Justice, and Woodhull Freedom Foundation came together with grassroots organizer Melissa Kadri and Sen. Ron Wyden (D-Ore.) on Wednesday for a press conference on some of the internet bills being considered by Congress.
Along with criticizing the EARN IT and STOP CSAM proposals, the event's speakers sounded the alarm about the Kids Online Safety Act (KOSA) and Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act.
\u201cThe Kids Online Safety Act would require surveillance of anyone 16 and under on social media, and would put the tools of censorship in the hands of state attorneys general. If it passes, adults too will likely face hurdles to accessing legal content online.https://t.co/J5hSGVIcqB\u201d— EFF (@EFF) 1683211560
Specifically naming Bolivia, China, Cuba, Iran, North Korea, and Russia as "foreign adversaries," the RESTRICT Act (S. 686) would empower the U.S. Department of Commerce to "review, prevent, and mitigate information communications and technology transactions that pose undue risk to our national security."
KOSA, which was officially reintroduced on Tuesday, would increase parental controls, force social media platforms to prevent and mitigate certain harms to minors, and require independent audits.
"I'm a parent of a 12-year-old, and I care deeply about my 12-year-old's future. And for me, I want to ask not just what policies will make the internet more sanitized or safer for my child, but what policies governing the internet will lead to the type of world that I want my child to grow up in," said Fight for the Future director Evan Greer.
"That's a world where she has access to human rights, where she has access to accurate life-saving information about issues like mental health and substance abuse, and where she has access to online community," she continued. "And that is true for so many children, particularly LGBTQ kids who are facing unprecedented assaults across the country."
Citing Fred Rogers' philosophy that what can be mentioned can be managed, Greer added that "a lot of these bills are based on the idea that we protect our kids by sequestering them off from discussion of these important topics; unfortunately, we actually know from evidence and data that that harms our kids, and that our kids are safer when they are able to discuss... with their peers and with experts these issues that affect them. These bills would, unfortunately, cut kids off from those resources, and that's why we believe that they will make kids less safe, and not more safe."
\u201c"When bad things don\u2019t happen, there is no news. This is the paradox of encryption. Because it\u2019s impossible to count \u201cprevented harms,\u201d we can\u2019t put a number on the vast number of children encryption has protected. But we know that it does."\u201d— Dr. Joseph Lorenzo Hall (@Dr. Joseph Lorenzo Hall) 1683159447
Wyden agreed that "these bills are going to make kids less safe." Specifically, he expressed concern about EARN IT and STOP CSAM bills attacking "the single strongest technology protecting kids and families online," warning that "weakening encryption is probably the premier gift you could give to predators and god-awful people who want to stalk and spy on kids."
"I want to make one quick point about the Kids Online Safety Act: Giving extremist governors the power to decide what content is safe for kids is a nonstarter," he said, calling out the GOP leaders of Florida and Texas. "Ron DeSantis and Greg Abbott are using every bit of power they have to go after queer and trans kids, censor information about reproductive health, and scrub basic history about race in America. I'm not about to give them even more power... I urge my colleagues to focus on elements that are actually going to protect kids rather than just handing big quantities of more power to MAGA Republicans to wage a culture war against children."
"I think the most important thing Congress can do to improve the internet for kids and everybody else is to pass comprehensive privacy legislation," Wyden asserted. "This fight... has been the longest-running battle since the Trojan War, and it's time to take on the special interests and get a strong bill passed."
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