In my second-to-last post on Section 230, I discuss the idea of internet exceptionalism—how, in passing Section 230, Congress decided that the internet should be different than other publishing mediums.
The passing of Section 230
When Section 230 was passed as part of the behemoth Telecommunications Act of 1996, it received little fanfare. Most attention went to the other parts of the 46,000-word law, including Exon’s indecency law; 230 was little more than an afterthought.
It was an early court case in the Fourth Circuit, Zeran v. America Online, Inc., which would shape how Section 230 was interpreted by courts for two decades to come. Kenneth Zeran was the target of threatening messages and phone calls after his phone number was wrongly posted alongside messages glorifying the 1995 Oklahoma City bombing on AOL.
Zeran sued AOL for negligence, alleging that they had a standard of care that they failed to meet, much like a store who failed to put up a wet floor sign. AOL’s lawyer asserted that Section 230 shielded AOL from all liability resulting from user posts. This was risky—no court had yet heard a case on Section 230—but it worked. The judge dismissed the suit, writing:
Congress’ clear objective in passing ยง 230 of the CDA was to encourage the development of technologies, procedures and techniques by which objectionable material could be blocked or deleted either by the interactive computer service provider itself or by the families and schools receiving information via the Internet. If this objective is frustrated by the imposition of distributor liability on Internet providers, then preemption is warranted. Closely examined, distributor liability has just this effect.
Kosseff notes: “To many reasonable observers, Ellis’s ruling resulted in not only an absurd reading of an obscure statute but also an outcome that was fundamentally unfair to plaintiffs such as Zeran.” This is an incredibly important dynamic, and I believe that it underlies all of the tensions surrounding Section 230 today.
Putting individuals last
The Zeran decision was the first of many defendants whose stories invited sympathy receiving little protection from the court:
- In Batzel v. Smith Ellen Batzel was accused of owning artwork stolen from Hitler’s descendants, and this spread through the Museum Security Network online. MSN was not liable for any of this, and Batzel’s life was ruined.
- Carafano v. MetroSplash ruled that a website Matchmaker.com was not liable for a fake dating profile created of the plaintiff.
- Doe vs. MySpace found that MySpace was not liable for failing to take steps to prevent the sexual assault of a minor
- Doe vs. BackPage.com ruled—most tragically—that BackPage.com could not be held liable for allowing sex trafficking of underage girls on their website. (The Supreme Court declined to hear an appeal in 2017, but a law restricting sex trafficking online was passed in 2018.)
Section 230 was the first step in concentrating online power in the hands of a few major companies. By shielding them from liability for virtually all user-created content, platforms could just continue growing. And because of the ability of online services to scale arbitrarily, they ran into no physical limitations like, say, manufacturing companies do.
And yet it’s the same law that has given individuals power that hasn’t existed before. By shielding companies from liability from user-created content, people can make their living off YouTube, Instagram, or Etsy. Consumers now have more power over companies who fear bad PR a complaint going viral on Twitter. And the #MeToo movement, though abusive men remain in powerful places, would not be possible if Twitter were worried about being sued for defamation.
Put otherwise, it’s precisely the fact that these platforms are so big that gives individuals more power and reach than they ever had before. This is not necessarily a good thing, but it’s not categorically a bad one, either.
“The internet is different”
My last point is that, in passing Section 230, Congress decided that the internet should be treated differently than any other publishing medium. The comparisons between the internet and the New York Times letters to the editor are not useful comparisons, because Congress deliberately acted to invalidate them.
The answer to “Why are Google and Facebook treated differently than NYT or the Washington Post?” is precisely that: because Congress chose to make them different. You can reasonably ask if they should be treated differently (and I’d still say yes), but in 1996 Congress wanted to let the internet develop with as few barriers as possible.
What about now? The internet is not a new technology, and it’s less clear what comes next. I’ll write a little more about this tomorrow, but there are no easy answers.