We’ve written a few times about the efforts of most states’ attorneys general to seriously hinder innovation online by effectively gutting Section 230 of the Communications Decency Act, by saying that it doesn’t apply to state crime laws. As we’ve discussed, the change may look simple — it merely adds two words to Section 230: “or state” — but the impact would be tremendous. As Derek Khanna has recently pointed out in two separate articles, Section 230 can quite reasonably be credited with enabling much of the internet innovation we all enjoy today, and the inclusion of just those two tiny words could bring a lot of internet innovation to a screeching halt.
And, even worse, those two little words could have a massive impact on free speech online.
A quick explanation may be helpful. The basic idea behind Section 230 is that it provides safe harbors to internet services, noting that they are not liable for things their users do online (with intellectual property infringement exempted). It is most often used in defamation cases, but applies in other situations as well. The concept is important even if it’s a simple one: we don’t blame the tool provider when the tool is abused. We don’t blame AT&T when a phone is used in a crime, just like we don’t blame Ford because one of its cars was used in a drive-by shooting. Unfortunately, on the internet, some people just love to blame the service providers for breaking laws, rather than the actual users. What Section 230 does is make it quite easy to do a course correction on such lawsuits, allowing the service provider to dump the lawsuit quickly, and effectively tell the suing party: “hey, focus on who actually broke the law, not us.”
Why is that so important? Because if service providers are potentially liable for the actions of their users, they’re a lot less willing to provide platforms and services that the public can use. The liability risks become too high, too fast. Even the cost of defending bogus litigation can wipe out a small company. What Section 230 does is let companies being sued get rid of those lawsuits much more quickly and cheaply than they’d otherwise be able to. And that, in turn, is essential for enabling free speech online. Because service providers can build their platforms and services to allow for free speech, safe and secure in the knowledge that if someone abuses those speech privileges, the site owners won’t be held liable. Without Section 230, for example, it would be very, very risky for sites like this one to have a comments section. Or any newspaper or blog site. Or Twitter. Or Facebook. Or YouTube. These tools that have become essential to enabling public speech likely wouldn’t be around.
And nearly every state’s attorneys general wants to kill it off.
Why? So that they can grandstand against websites they don’t like online, because some of their users do bad things. Rather than using those sites as a tool to find the people doing bad things, it gets a lot more press attention for the various attorneys general to just go after the company itself. The end result, though, would be many fewer online services, much less internet innovation and a massive dampening of free speech online.
Because of two little words.
Section 230 has been an astounding success in enabling tremendous new platforms that have, in turn, encouraged all kinds of valuable expression. We shouldn’t wipe that out with two little words designed to help some politicians blame companies for the things their users do.