Why the internet’s most important law exists and how people are still getting it wrong
Section 230 of the Communications Decency Act is one of the internet’s most important and most misunderstood laws. It’s intended to protect “interactive computer services” from being sued over what users post, effectively making it possible to run a social network, a site like Wikipedia, or a news comment section. But in recent years, it’s also become a bludgeon against tech companies that critics see as abusing their power through political bias or editorial slant. Just this week, Sen. Josh Hawley (R-MO) introduced a major (and highly unpopular) amendment, claiming Section 230 was designed to keep the internet “free of political censorship.”
But that’s just not what happened, says US Naval Academy professor Jeff Kosseff, author of the recent book The Twenty-Six Words that Created the Internet. Twenty-Six Words is a nuanced and engaging look at the complicated history of Section 230, which was put forward as an alternative to heavy-handed porn regulation and then turned into a powerful legal shield through a series of court rulings.
Kosseff tells The Verge that he doesn’t think Section 230 is perfect. It’s led to truly painful outcomes for victims of harassment and defamation who can’t make platforms take down posts or sue them for damages. But anybody who thinks the modern internet is broken should at least understand why the law was created, why it’s so fundamental to the web, and why people are interpreting it in ways the architects never intended.
To really understand Section 230, you have to go all the way back to the 1950s. There was a Los Angeles ordinance that said if you have obscene material in your store, you can be held criminally responsible. So a vice officer sees this erotic book that he believes is obscene. Eleazar Smith, who owns the store, is prosecuted, and he’s sentenced to 30 days in jail.
This goes all the way up to the Supreme Court, and what the Supreme Court says is that the Los Angeles ordinance is unconstitutional. There’s absolutely no way that a distributor like a bookstore could review every bit of content before they sell it. So if you’re a distributor, you’re going to be liable only if you knew, or should have known, that what you’re distributing is illegal.
Then we get to these early internet services like CompuServe and Prodigy in the early ‘90s. CompuServe is like the Wild West. It basically says, “We’re not going to moderate anything.” Prodigy says, “We’re going to have moderators, and we’re going to prohibit bad stuff from being online.” They’re both, not surprisingly, sued for defamation based on third-party content.
CompuServe’s lawsuit is dismissed because what the judge says is, yeah, CompuServe is the electronic equivalent of a newsstand or bookstore. The court rules that Prodigy doesn’t get the same immunity because Prodigy actually did moderate content, so Prodigy is more like a newspaper’s letter to the editor page. So you get this really weird rule where these online platforms can reduce their liability by not moderating content.
That really is what triggered the proposal of Section 230. For Congress, the motivator for Section 230 was that it did not want platforms to be these neutral conduits, whatever that means. It wanted the platforms to moderate content.
In your book, it sounds like the discussion revolved around porn and defamation. Those were the things people were really worrying about. Is that an accurate reading?
Yeah, it’s kind of quaint! Or. mostly. The biggest concern would be sort of “indecent but not obscene” pornography and defamation. But I will say there were some really tough cases in the earliest days of Section 230. There’s a case — the second case ever decided under Section 230 — where a mother was suing AOL in Florida because its chatrooms were used to market pornographic videos of her 11-year-old son.
But, obviously, with the internet playing a much more vital role in society and playing a much more central role in society, the number and the complexity of these cases has increased significantly.
That was the Zeran v. America Online case, the first case ever decided, and that really set the precedent for all of Section 230. The guy had his phone number and name posted on a really tasteless ad about the Oklahoma City bombing less than a week after it had happened, and he was just getting constant threats. He had to go on psychiatric medication. It was really horrible for him. So there’s always been this balance that we’ve had to strike between the ability to speak freely online and these real harms that people are suffering.