A range of parties, from individuals who have been falsely accused, harassed, and harangued on social media to conservatives charging media bias, have increasingly called for reform or repeal of Section 230 of the Communications Decency Act (CDA).
The CDA, enacted in 1996—before social media platforms even existed [Facebook 2004, Twitter 2006]—ostensibly sought to prevent child pornography and obscenity on the internet.
Sam Terilli, chair of the Journalism Department in the University of Miami School of Communication, and A. Michael Froomkin, a professor at the School of Law with expertise in constitutional and internet law, offered contrasting views on whether Section 230—"the 26 words that created the internet”—should be reformed and the possible ramifications.
“There’s very good reason for the internet service providers and others to have a certain degree of protection so that they’re not deemed the publishers of content created by others, but what do you do with the individual, a private figure who has clearly been outrageously defamed and injured by a person or by a site on the internet?” Terilli questioned.
“The classic response is that you have a remedy: Sue that publisher. But that doesn’t always go far enough because litigation might take time and there might be other problems that allow for the disastrous content to remain up,” said Terilli, in referencing the case of Alex Jones, the conspiracy theorist sued for defamation by relatives of victims in the Sandy Hook Elementary School shooting. Jones has claimed the shooting was a hoax and promoted those views online.
Froomkin recognized that there are “noble” reasons to protect individuals and certain groups from the mental and verbal abuse that at times proliferates on the platforms but argued that the protections for free speech outweigh the merits of repeal, and that many simply seek to censure. He cautioned that any changes should be extremely measured and minimal so as “not to kill the golden goose.”
“Section 230 is one of the key reasons why the internet is as useful as it is, and why the United States is the location of choice for major internet content companies,” he said. “That’s not to deny that there is a problem—people are abusing things—but we have legal remedies for those things.”
Both experts emphasized that the law does not provide immunity for federal or state crimes. According to Froomkin, the challenge is to find the people who abuse and violate policies because they hide behind fake identities and can be hard to track.
“But that’s not a Section 230 issue,” he said. “The recourse is to find the people who committed whatever abuse and sue them for damages and put them in jail—the recourse is not to reshape the entire internet.
“We have a right to speak anonymously under the First Amendment, and many, not all, reformers are trying backdoor methods to stop people speaking anonymously because they think it hurts minorities and women—and they’re probably right by the way,” he said. “But we need to be wary of backdoor methods that undermine the right to speak anonymously, as well.”
The internet world is vastly different from when the Communications Decency Act was enacted in 1996, according to Terilli.
“There were problems with the law and how it was written,” he said, noting that the Supreme Court declared a number of facets of the legislation unconstitutional. “Yet there is no question that the concern over obscenity, pornography, and indecency was one of the motivating factors behind it, but there was also a recognition even back then—in the dark ages of the internet—that a tremendous amount of content was being uploaded and there was a question of how to treat the service providers,” Terilli added.
“It was a reasonable response to the problem as it was understood at that time,” he continued. “But things have changed and, as with any other law and any other fast-changing form of technology, we need to take a step back and reevaluate—not for the political reasons that have been articulated—but for the reasons related to protecting people and better serving society.”
Recently, in the wake of policy violations that have been associated with criminal behavior and violence, social media giants such as Facebook and Twitter have shifted from their long-standing laissez-faire stance and moved to block accounts and exercise more control of what is published on their sites.
These actions are well within the domain of these private companies, noted Terilli. A media lawyer who has advised clients—which included the Miami Herald— since the 1990s, he has customarily counseled them to remove questionable comments from their blogs and platforms.
“Facebook, Twitter, YouTube, Snapchat, and others ought to have a great deal of freedom to adopt their own policies and take people down and remove comments at will,” Terilli indicated. “These are private businesses, and they ought to be able to protect the quality of the sort of ecosystem that they’re operating, but they ought to be required to do more when people, their reputations, and their privacy are suffering.”
While an increasing number of voices have joined the call to reform the law—the Biden administration is reportedly in favor and even Mark Zuckerberg, CEO of Facebook, has called for changes—Froomkin noted that many remain opposed.
“There’s been very strong pushback from internet content industries, and civil liberties organizations are very concerned that amendments to the CDA will result in mechanisms just to shut up criticism online,” said Froomkin, a Laurie Silvers and Mitchell Rubenstein Distinguished Professor of Law.
Terilli suggested that the Digital Millennium Copyright Act (DMCA), enacted in 1998 to criminalize production and dissemination of technology, devices or services intended to circumvent measures that control access to copyright works, could serve as a model for CDA reform.
“The tech geniuses figured out how to deal with that when it comes to protected copyright,” he said. “There are now all sorts of means of identifying protected copyrighted material and a process for doing that under that law.
“Again, nothing is perfect, and some issues are still being worked out on this, but we are making progress and it essentially works,” Terilli remarked. “If we can make it work for copyright for that property rights, why can’t we make it work for other similar issues?”
Froomkin countered, however, that the DMCA was a “terrible, terrible model.”
“The DMCA is a cautionary tale, and [changes to the CDA] will be much worse because the DMCA was designed for people with copyrights that were economically valuable, now anybody who wants to stop speech can call for a take-down order,” he pointed out.
“Anytime you create a take-down provision, what you’re really creating is a silencing-the-little-guy provision,” Froomkin said. “Some of the people who are proposing changes have their eye on another cause such as protecting battered women, and that’s an acceptable side effect for them. Yet for some, silencing the little guy is actually their goal.”
Any possible Section 230 reform should include consequences for those making false accusations and claims, Froomkin stated. He said that the DMCA penalties for making false accusations of copyright are trivial and that situation has led to abuses.
Froomkin is concerned that attempts to reform may result in “the cure being worse than the disease.”
“The remedies that are proposed are by and large going to destroy the sites, destroy the utilities, and the major channels of conversation,” Froomkin said. “If we are going to make changes, we have to understand because experience has taught us how these systems are abused.”
Terilli agreed that any attempts at reform must be conscientious and motivated by the right reasons. He urged that any reform of the legislation must include the industry.
“You don’t want this to be some solution dreamt up in the hallways of Washington without input from the people who are in the trenches—and not just Mark Zuckerberg or other CEOs, but many others as well, people who are familiar with the impact on everyday people,” he said.
“We need to focus on giving offended people a mechanism for redress,” Terilli added. “But the devil is in the detail, and it will depend on the language that’s used. You don’t want to create new problems by amending the law with ambiguous language and giving people too much latitude to create mischief in the courts.”
