Today, Explained - 26 Words

Episode Date: February 9, 2021

A quarter-century after it was signed, Section 230, the law that made the modern internet, has done the impossible: united Democrats and Republicans. Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Gambling problem? Call 1-866-531-2600 or visit connectsontario.ca. 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. Those 26 words you just heard are known as Section 230. It's a law that laid the foundation for the Internet as we know it today. It made big tech behemoths like Google and Facebook possible. And it's not just big tech. I mean, it's any platform that hosts user content. So it goes anywhere from Facebook and YouTube all the way down to the community news site that I read every day in Arlington, Virginia, that has a pretty lively user comment

section. Law professor Jeff Kossoff. But when I read some of the comments, I think, wow, they're pretty lucky that Section 230 exists because they really get into it. And so all of that open discussion would be much more closed if we didn't have Section 230. For the uninitiated, Section 230 essentially protects platforms from being responsible for everything users say. It sounds sort of small, but it's enormous. Take Yelp. Without Section 230, if Yelp were to receive a complaint about a user review, their choice would either be to take it down or they would have to possibly defend it in court as though they were the author.

And now I'm not going to speak for Yelp, but if I were their legal counsel in a world without Section 230, I would tell them immediately take down any review when you get a complaint because you're in no position to investigate whether that car mechanic has ripped off a consumer. So the Internet would look very different. It would be much more of a one-way communication street than sort of the multilateral experience that we have now. So basically, whenever we write our opinion about anything on some platform on the internet, we're doing so by the grace of Section 230. That's exactly right. Section 230 has been getting a lot of attention lately from politicians who'd like to rein in big tech, which Jeff Kossoff did not see coming when he wrote a book about it just a few years

ago. Not at all. I started writing this book in 2016 because I had an academic interest in Section 230, and more than one university press of all places told me that there was not sufficient interest in something called Section 230 to publish a book about it. So clearly, things have changed in the past few years. 230 turns 25 this week. So on the show today, we're going to explore the ways politicians would like to change this founding pillar of the internet and how that could change

just about everything we do online. But before we do, we're going to talk about Section 230's origin story. So to understand Section 230, you really have to go back before the internet. A flood tide of filth is engulfing our country in the form of newsstand obscenity and is threatening to pervert an entire generation of our American children. In the 1950s, we had a very different and much more expansive view of what constituted obscenity, which could be criminally prohibited. So you had a bunch of local laws that sought to criminalize the sale of obscene materials. Report objectionable material to the police. The law is your weapon.

There was a 72-year-old man named Eliezer Smith who ran a bookstore in a kind of bad part of Los Angeles, and he gets a visit from an LAPD vice officer who determines that a book that he's selling in his store is criminally obscene. And Eliezer Smith, he's an immigrant from Poland, and he says, you know, I don't read all the books I sell. I sell thousands of books. Eliezer Smith, appellate versus the people of the state of California. And his case goes all the way up to the Supreme Court.

The chief justice member of the court. And his case goes all the way up to the Supreme Court. And the Supreme Court strikes down the law, and they say that you cannot hold the distributor of someone else's speech liable absent any knowledge or other sort of culpable mental state, because that would chill too much speech. The first problem you have when you deal with an innocent proprietor of a bookshop is this. If you're going to ask him, if you say to him, regardless of all the reasonable precautions

you take, nevertheless, you will be guilty. The inevitable tendency is to stop the flow of books. So even though obscene material is not protected by the First Amendment, by imposing liability with no knowledge whatsoever, that will actually chill other legal speech. So we have that rule, and it works pretty well over the next few decades for bookstores, for newsstands, those sorts of distributors.

But then we get to the early 1990s, and we have a very new type of distributor. Pretty fancy computer there. Want to give it a test drive? Me? And those distributors are online services. Prodigy. Prodigy? Prodigy and CompuServe are the two biggest. CompuServe combines the power of your computer with the convenience of your telephone to bring you hundreds of online services, like a complete set of encyclopedias. And when I tell students about this now, they just kind of give me a blank look, like, what are you talking about? But at the time, if you wanted to access information on your computer, you could either use local bulletin boards or you could go to these national services.

CompuServe and Prodigy had fairly different practices. CompuServe was kind of like the Wild West. They did very little moderation or curation of content that third parties provided on their services. Prodigy, on the other hand, wanted to be family-friendly, so they had much more detailed content policies and they contracted out moderation because they wanted parents to feel comfortable letting their kids look up information on an online encyclopedia

or participate in a chat group. The kids use this? Love it. One of the big reasons we got Prodigy. Not surprisingly, both CompuServe and Prodigy get sued for content the third parties post. They both get sued for defamation. CompuServe manages to get the case dismissed because what the judge does is he looks at CompuServe

and he says that CompuServe is basically like an electronic newsstand. And there was no evidence that CompuServe knew of the particular defamatory material. So just like Eliezer Smith, CompuServe is not liable. Prodigy, on the other hand, they get sued. And the judge says, I'm not going to immediately dismiss this case because Prodigy is more like a newspaper than a newsstand. Prodigy has taken efforts to moderate user content. So that means that Prodigy becomes responsible for everything on its service, regardless of whether it knew about it. Yeah, so this created a very different standard

depending on whether you actually moderated content. So it's a company sort of paradoxically that is moderating its site that gets punished while another that isn't moderating anything is let off the hook. Do I have that right? That's exactly right. So that's exactly what Section 230 was intended to fix. Who is it that ultimately steps up to figure this out so this isn't just bouncing around in the courts all the time? Chris Cox, a Republican from Orange County who later became the SEC chairman under President Bush. At the time that we passed our bill, there were court cases that perversely made

internet providers liable if they tried to exercise editorial discretion, keep smut off the internet, and so on. And Ron Wyden, who at the time was a U.S. representative for Morgan, who's now a senator, who's a Democrat. Chris and I happen to think that there is the energy and the talent in the private sector, in the markets, which understand how much parents want these innovative blocking technologies now. And politically, they have very different profiles. I've lived in Portland, and I can say that it is a very different place from Orange County, California. But they both were younger, and they had districts that relied pretty heavily on the tech industry. So they saw this as a way to really help promote growth in this new industry. This is an industry in formation. It's only beginning.

If the government takes the view that it can control it, define it, and regulate it while it's still in embryonic form, it's bound to fail. And so what did they come up with? Tell me what these 26 words are. So Section 230 has a bunch of different provisions and definitions, but the main provision, what I call the 26 words that created the internet, say 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. So in essence, that means you can sue the person who posted the bad stuff about you. If it's defamatory, for example, but unless an exception applies, and there are a few different exceptions, you can't sue the platform where it was posted. And there were two reasons. First, it was to fix this disincentive to moderation.

And the second goal was to say, we recognize this is a nascent industry, and it has a lot of potential. And we don't want to burden it down with regulation and litigation at the outset. So we're going to take a hands-off approach, and basically the market will do its thing. And if a platform is doing too much moderation, people might not like that very much. But if it's doing too little moderation, people also might not like that. So it very much is saying, you know, let's let the consumer demand dictate what platforms do. And does it make any sort of splash when it's introduced, when it's passed into law? Section 230 didn't really get attention until more than a year later when there was a case where AOL, you've got mail, they were sued for user content. And

this was the first time that any company had been able to rely on Section 230 as a defense. And the court interpreted Section 230 in an incredibly broad manner. And that's when people started to realize, wow, section 230 is something that these online services and websites can really rely on to get rid of lawsuits. So I think a lot of the big platforms now, I mean, they all started out as small companies. And I think that they could not have emerged with their current business models in a world without Section 230. Once they've gotten to the size and the wealth and the power that they have, they would be able to survive now without Section 230. I think they'd have to change their operations pretty radically. But a small social media company that starts out being founded by a college student, that's something where if they were liable for every bit of content that their users posted, that would be very hard to get off the ground. It would be hard to attract venture capital funding in that circumstance. So the same is true for any startups now that rely on user content and want to become the next Facebook or Twitter. Section 230 is pretty crucial for them.

Jeff Kossoff is a professor at the U.S. Naval Academy and the author of a book titled The 26 Words That Created the Internet. After the break, Section 230 may be one of the few things that the former president and, say, Elizabeth Warren can agree on. At least, kind of. I'm Sean Rottmuss for them. It's Today Explained. They're digital picture frames. They were named the number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an aura frame as a gift, you can personalize it. You can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an aura frame for himself.

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and available just in time for the holidays. Terms and conditions do apply. Addie Robertson, you're a senior reporter at The Verge. We just talked to Jeff about the sort of long history of Section 230, but we didn't get into the more contemporary political infighting over this issue. When does it first become a political target? Section 230 in a broad sense doesn't see a lot of legislative action for many, many years. And then in 2017 and 2018, there is this push to change it to address sex trafficking. There has been a huge development in the attempt to regulate tech companies today, but it had nothing to do with Facebook. Zysta Foster took away the safe harbor protection from any online speech that enables prostitution, including voluntary sex work.

Police recorded a 170% jump in reports of human trafficking in San Francisco last year. But we're learning that that huge spike appears to be connected to the federal shutdown of sex-for-sale websites. The goal of this law was to curb human trafficking, but it seems to be having the opposite effect. FOSTA-SESTA becomes sort of the first time that this bill gets seriously debated in Congress for a while. But at that point, it's relatively bipartisan. This is seen as an issue that most people on both sides of the aisle support. However, around that time, there's also a backlash building against social media. And that starts bleeding into the fight about Section 230 in ways that turn out to be really partisan.

So one of the earliest examples is that Mark Zuckerberg shows up in the spring of 2018 to talk to Congress. And Senator Ted Cruz says, well, under Section 230, you have to be a neutral public forum. The predicate for Section 230 immunity under the CDA is that you are a neutral public forum. Do you consider yourself a neutral public forum? Are you engaged in political speech, which is your right under the First Amendment? This is not actually how the law works, but it starts setting into motion this weird kind of contradictory messaging that is mostly on the Republican side that says Section 230

is simultaneously something that tech companies are violating by not being quote-unquote neutral and something that's allowing tech companies to not be neutral. And that's why we need to reform the law. So how does it go when Mark Zuckerberg testifies before Congress? So obviously, Mark Zuckerberg is going to say we're a neutral platform. I'm very committed to making sure that Facebook is a platform for all ideas. That is a very important founding principle of what we do. And that is something that as long as I'm running the company, I'm going to be committed to making sure it's the case. And from there, nothing really happens for

a while. But then over the next couple of years, the more that tech companies end up on the opposite side of fights with mostly President Donald Trump, the more Section 230 becomes this sort of boogeyman for anybody who is upset about the idea that social media is censoring conservatives. And the former president plays a huge role in sort of mainstreaming Section 230, right? Right. So from the beginning, Trump, who is a huge social media user, hates social media companies because he thinks that they rigged their results to make him lose followers or that they don't put positive things about him in Google? Yeah, I think Google is really taking advantage of a lot of people. And I think that's a very serious thing and it's a very serious charge. I think what Google and what others are doing, if you look at what's going on at Twitter, if you look at what's going on in Facebook, they better be careful because you can't do that to people.

And so he looks for ways to attack them. And this brings him to the idea that he should be able to regulate social media and make it not biased against him by changing Section 230. This kind of percolates in the background for a while, and then in early 2020, Twitter starts fact-checking his tweets. When the looting starts, the shooting starts. The words of the president. You can see at the top that Twitter took note a short time ago. It flagged that tweet saying this. This tweet violated the Twitter rules about glorifying violence. However, this is very, very bad for him, apparently, because he signs an executive order that is designed to eliminate bias on social media

by making the federal government basically redefine Section 230. They have a shield. They can do what they want. They have a shield. They're not going to have that shield. And it makes Section 230 just this big target for the rest of the year. And this is like, as a lot of Americans are focusing on, say, a global pandemic or a frightening election situation, what is going on, on like underneath the surface with politicians, the former president, and Section 230?

So all of the big things that you're talking about play out over social media. And so every time one of those things ends up putting Trump in a fight with mostly Twitter or Facebook, Section 230 gets sort of dinged for being somehow related to that. So by about a month before the election, Trump is just sending out all caps tweets that say repeal Section 230. Giving a law to them, Section 230. We've given them that power. And you know, that can be taken

away. That can be taken away. Because he believes that if Twitter takes down his tweet about when the looting starts, the shooting starts, which it didn't, but it kind of restricted it, then he points to this executive order or a bunch of legislative stuff and says, look, we need to take action on this. And this doesn't end after the election. Right. After the election, it only gets worse because Congress puts up this defense bill, the NDAA, and Trump says, OK, well, this thing has to include a repeal of Section 230. And so he vetoes it. And then Congress has to override the veto for this massive bill because Trump decided

that he wants to stop Twitter from being biased against him by changing one of the foundational laws of the internet. It was just a strange thing for him to pick as the hill that he dies on. And of course, he does sort of die. Not only is he overridden for the first time in his presidency by a veto-proof majority in the Senate, but then of course he does finally leave the executive office. Is someone going to pick up this 230 fight for him in the GOP? So Senator Josh Hawley has put forward a bunch of bills even before the executive order that were aimed at enforcing this idea of neutrality. And there have also been bills brought by, among others, Lindsey Graham.

So they're definitely still going to be involved in this fight. It's interesting, right? Because this is sort of thought of as this wildly partisan fight, but Democrats would like to see reform too. Yes. Biden. You know, Section 230 should be revoked immediately. Should be revoked, number one, for Zuckerberg and other platforms. That's a pretty foundational law of the modern platform-based internet.

Exactly right. And it should be revoked. What do Democrats want to do? So yeah, last Friday, a group of lawmakers, including Amy Klobuchar and Mark Warner, introduced what's called the Safe Tech Act. What we wanted to try to draw up was a carefully tailored reform of Section 230 that didn't go at the underlying debate about speech. And this feels like something that could end up being a blueprint for how Democrats push for 230 change. So this rule is, if you read between the lines, based on a few kind of big cases where it seems like Section 230 has failed the internet. So for example, it carves out rules saying, okay, Section 230 doesn't apply

to wrongful death suits, which has been an issue because when, say, guns are sold online, platforms like Arms List have used Section 230 to say, well, we're not responsible for this. We're just the platform providing this service for people to sell weapons. The same goes for harassment. If you have been harassed so often from one of these platforms and you're able to get injunctive relief, Section 230 should not preclude it. There is human rights, which is aimed at the genocide of Myanmar and making it possible for, say, people to sue Facebook. We wanted to make sure that civil rights laws applied and that Section 230 did not prevent that. And we wanted to make sure that the Alien Tort Act, so that if someone in Rohingya could show cause under the Alien Tort Act, for example, that Section 230 would not protect.

And it's just sort of a laundry list of largely pretty valid complaints that people have against big social media sites. It's an attempt to carve those things out of Section 230. So it sounds like if there are changes to Section 230, they might not be sort of vast reimagining changes, but more sort of smaller piecemeal tweaks? This is the problem is that it's really hard to tell what is a vast change to Section 230. Because a lot of what Section 230 says and does is, look, if you're running a website, you don't have to worry about a bunch of potential hazard for user-generated content, no matter what it is. Because anybody can post anything on the internet. You can post harassment on a knitting forum as easily as you can on Facebook or some kind of

gossip site. So really, the risk when you do something like carve out harassment or any other policy section from 230 is you put all sites at risk if someone uses them for that thing and they don't catch it. Like the difficult thing with section 230 is always trying to find ways to avoid collateral damage that takes down well-meaning smaller sites. And it's really hard to tell if the new bill, and really any bill, managed to thread that needle. I remember, you know, when I first heard about Section 230, it was in the context of it being some sort of pillar of the internet, this sort of flawless regulation that created this thing that has become so essential to our lives.

It sounds like from everything that's going on right now, and even in the past couple of years, that's changed at the very least, right? There's more of a willingness to re-examine it and to think about how it could work better for all parties? A lot of tech optimism has faded over the last decade. A lot of optimism about what the internet was capable of and what people being in touch with each other at a large scale meant. And the more ugly things that people point out on the internet, the more it seems like the law that created the internet is actually a bad thing. So it's really not that surprising. But it is a little bit of a red flag that you should probably be careful when you're tinkering with this thing

because its effects are really hard to predict. Addie Robertson is a senior reporter at The Verge. You can find her reporting on section 230 at theverge.com. Goodbye.