Section 230 of the Communications Decency Act

Of course this is totally wrong. Section 230 is not a “special deal” — it is a maintenance of our existing law. In essence all Section 230 does is make the speaker liable for their statements, not the platform on which the statements are made. This makes sense. Think about a “dog walker” ad on a bulletin board at Starbucks. If the dog walker does a bad job, it would be absurd to hold Starbucks liable. Section 230 applies the same treatment to online platforms. And Section 230 enshrines our offline “Good Samaritan” rule for platforms. In the offline world, if someone is hurt and you help them, you are not liable for any damage you cause in your effort to render assistance. Section 230 makes this true for platforms. If platforms moderate the content on their platform to remove objectionable content, platforms are not liable because they took down the objectionable content. At the end of the day, Section 230 is not a “special deal for tech” but an enshrining of offline laws for an online world.

As the online world was growing “bulletin boards” were a popular means of online communications. Bulletin boards were a command line software run on a server that allowed those who “dialed in” to upload or download software, post messages, read messages and exchange messages. Following a couple court cases (Compuserve in 1991 and Prodigy in 1995), efforts by bulletin board software platforms to eliminate, restrict or edit content submitted by users would face an increased risk of liability as compared to surrendering control and completely declining to review or edit third party content at all. The common law had resulted in a perverse incentive – abandon any attempt to clean up an online platform rather than face liability or seek complete publisher control thereby restricting the online world to only the publishers voice. Section 230 was conceived as a statutory means for owners to properly maximize their investments, property and abilities while also providing an incentive for good actors. This “safe harbor” was created to encourage owners to provide some level of policing to fight against crimes of all sorts but not least was child pornography and content piracy. The safe harbor language is simple and straightforward, “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” With this language online providers, websites, bulletin boards, internet service providers and other platforms, were now free to police their sites as they would like, often cleaning up their sites to attract a broader audience. The language incentivizes and protects good Samaritans. In essence all Section 230 does is make the speaker liable for their statements, not the platform on which the statements are made. This makes sense. But where did the idea come from? From existing law. The notion that a person must have knowledge and control over a situation to be liable is well established throughout existing law. Imagine if FedEx and UPS were liable for the contents of each package shipped through their systems. Likely, packages would have to be opened by the companies to verify the contents. Should landlords be liable for contract fraud committed behind closed doors on their property? Should Starbucks have to vet all the promoted services on flyers tacked to their in-store bulletin boards? Section 230 enshrines our offline “Good Samaritan” rule for platforms. In the offline world, rendering aid to someone who is hurt does not make a person liable for any unintentional damage caused while rendering assistance. Now if platforms moderate the content on their platform to remove objectionable content, they are not liable. At the end of the day, Section 230 is not a “special deal for tech” but simply the transfer of analog laws to an online world.