Should Section 230 be revised?

What is

Should Section 230 be revised?

Section 230 of the Communications Decency Act helped create the modern internet.

Now the regulation is at the center of a high-stakes political battle that could reshape how we use social media, mobile apps and the open web.

President Donald Trump and some Republicans in Congress have pushed to repeal the law, while Big Tech CEOs have signaled support for modifying it — although no one can agree on how. 

Here's what you need to know about the controversial law, its flaws and why the prospect of killing it off in a fell swoop worries experts.

What is Section 230?

Section 230 is part of the Communications Decency Act, a 1996 law (and itself part of the Telecommunications Act of the same year) that regulated online pornography. Specifically, Section 230 provides legal immunity from liability for internet services and users for content posted on the internet. 

The regulation states, “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.” 

What that means in practice is that internet companies — everything from social media platforms to online retailers to news sites — are generally not liable if a user posts something illegal. Backers of Section 230 credit in part for the success of companies , and , which depend on vast amounts of user-generated content.

“[It's] part of the architecture of the modern internet,” said David Greene, senior staff attorney and Civil Liberties Director for the Electronic Frontier Foundation. “Everything you do online depends on it.”

Before Section 230 became law,internet services were required to be aware of and responsible for everything on their sites. “The existing law could not scale to meet the needs of the internet in 1996 and certainly wouldn't scale today,” Greene said.

Early online forums of the 1990s “either had to read everything, had specific legal protection for content, or were just responsible for everything on [the] site,” he explained. “Because it's impossible to read everything, most companies would just opt to take it down.”

But under Section 230, platforms can choose to moderate some of their content without being liable for all of it.

Why does Section 230 draw criticism?

Critics, including Mr. Trump, accuse tech firms of effectively using Section 230 as a shield to disguise what amounts to politically partisan activity. Republican lawmakers allege that conservative voices are censored when tech platforms ban users for breaking site rules, when removed Alex Jones's account for glorifying hate speech.

Greene said Section 230 has little to do with censorship and allows private internet companies to selectively edit which content and users they want on their platform. 

“Section 230 has nothing to do with any intermediary adopting an ideological viewpoint,” he said, noting that “researchers who have studied [internet censorship] don't see much evidence of [political bias] in the big platforms. In fact, their right to curate their sites is guaranteed by the First Amendment.” 

What happens when someone tries to sue an internet company?

Social media firms have flourished under the regulation because it doesn't require companies to know about illegal or harmful content posted by users. Arguments 'You knew there was a problem,' or 'You should have known there was a problem' don't work in lawsuits, because 230 simply does not address a defendant's knowledge of illegal content. 

However, that's only true for civil cases. Section 230 does not protect platforms in criminal cases, or in cases involving copyright claims, sexual exploitation of children and sex-crimes work. The Department of Justice also recently proposed legislation that would make it easier for ordinary citizens to sue social media firms.

Could social media survive without Section 230?

Without Section 230, most experts agree it would be hard for startups and new tech firms to enter the online market because they would face high legal costs and liability risks. Large internet companies would evolve and survive but function differently. Greene said companies and would have to pre-screen all content or evaluate, pre-approve and micromanage users.

“Goodbye, political organizing!” he added.

Meanwhile, some social media sites could be subject to a new law called notice-liability, meaning they're not liable for content they don't know about.

But those systems are easily abused by trolls who complain loudly about content, Greene said. “It creates incentives for people who don't the speech to just complain about it.

It's then much less expensive for an intermediary to delete the speech, rather than investigate whether the complaint has any merit.”

Is there a way to compromise? 

Instead of scrapping Section 230 entirely, Greene thinks Congress could devise a compromise that updates the law while also protecting speech online. Technology built the open internet, and regulations Section 230 protect it. 

But a compromise that doesn't similarly shield web users and platforms would fundamentally alter the internet as we know it today. It would have “devastating implications for privacy” because it would legally require internet firms to act as gatekeepers and track everything their users post, he said.

Are there risks to changing Section 230?

While flawed, Section 230 has been important for more than two decades. It has allowed new companies to thrive and lets people express themselves online, supporters say.Altering or removing 230 would ly have unknown and far-reaching consequences. 

“You should care about [230] if you use online intermediaries, which is everyone,” Greene said. “The same rule that might block threatening political speech would also apply to your political speech, along with photos of your kids that you want to share with your family.”


Everything you need to know about Section 230

Should Section 230 be revised?

This is a living guide to Section 230: what it is, what it isn’t, why it’s controversial, and how it might be changed. This guide will be updated as events warrant.

What is Section 230?

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Section 230 of the Communications Decency Act, which was passed in 1996, says an “interactive computer service” can’t be treated as the publisher or speaker of third-party content. This protects websites from lawsuits if a user posts something illegal, although there are exceptions for copyright violations, sex work-related material, and violations of federal criminal law.

Sen. Ron Wyden (D-OR) and Rep. Chris Cox (R-CA) crafted Section 230 so website owners could moderate sites without worrying about legal liability.

The law is particularly vital for social media networks, but it covers many sites and services, including news outlets with comment sections — The Verge.

The Electronic Frontier Foundation calls it “the most important law protecting internet speech.”

It’s increasingly controversial and frequently misinterpreted, however. Critics argue that its broad protections let powerful companies ignore real harm to users. On the other hand, some lawmakers incorrectly claim that it only protects “neutral platforms” — a term that’s irrelevant to the law.

Similar legislation exists in the European Union and Australia.

What’s the relationship between Section 230 and the First Amendment?

In the United States, the First Amendment prohibits the government from restricting most forms of speech, which would include many proposals to force tech companies to moderate content. A law that required companies to moderate content the political viewpoint it expresses, for example, would ly be struck down as unconstitutional.

Private companies can also create rules to restrict speech if they so choose. This is why and ban hate speech, for example, even though it is legally permitted in the United States. These moderation rules are protected by the First Amendment as well.

This issue is distinct from discussions over whether platforms should be liable for what their users post, though it often gets lumped in with the 230 discussion.

How has Donald Trump tried to change Section 230?

In May 2020, President Donald Trump released an executive order targeting Section 230 and social media.

(He reportedly drafted the order a year earlier, but it was tabled following confusion from regulators and legal experts, until a feud with revived the idea.

) The order asked regulators to redefine Section 230 more narrowly, bypassing the authority of Congress and the courts. It also pushed agencies to collect complaints of political bias that could justify revoking sites’ legal protections.

Trump has broadly backed Republican efforts to change the law in Congress. Following Joe Biden’s election, he’s gone further and pushed for complete Section 230 abolition — threatening to veto the National Defense Authorization Act unless it includes a repeal of the law and packaging it into the ongoing push for $2000 direct stimulus payments.

How might Joe Biden change Section 230?

President-elect Joe Biden is less vocal than Trump about Section 230. But he’s also not a fan of the law. In January 2020, Biden proposed revoking Section 230 completely.

“The idea that it’s a tech company is that Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” Biden said. “It should be revoked because it is not merely an internet company.

It is propagating falsehoods they know to be false.”

Biden hasn’t advanced a specific Section 230 agenda since the election. In December 2020, however, a Biden advisor suggested “throwing out” Section 230 and developing new legislation — saying the rule allowed children to view disturbing material online.

How has Section 230 been modified over the years?

In April 2018, Trump signed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a bill that purports to fight sex trafficking by reducing legal protections for online platforms. (It’s also sometimes referred to as the Stop Enabling Sex Traffickers Act, or SESTA, after an earlier version of the bill.)

FOSTA carves out a new exception to Section 230, stating that Section 230 doesn’t apply to civil and criminal charges of sex trafficking or to conduct that “promotes or facilitates prostitution.” The rule applies retroactively to sites that violate it.

What effect has FOSTA-SESTA had?

Following the passage of the bills, websites began to censor parts of their platforms — not because they were currently hosting prostitution ads, but because of the faint possibility that some third party could do so in the future.

The laws are why Craigslist no longer has a Personals section. Now, sex workers say that they have broadly been forced offline, making their work far less safe.

Prostitution-related crime in San Francisco alone — including violence against workers — more than tripled.

Democrats have called for a study of the harms created for sex workers by the law. There is little to no evidence that the law has had much of an effect on reducing online sex trafficking.

What other changes are US legislators proposing?

In February 2020, the US Department of Justice held a day-long workshop to discuss ways in which Section 230 could be further amended. They’re examining cases in which platforms have enabled the distribution of nonconsensual pornography, harassment, and child sexual abuse imagery.

Proposals to reform the law generally fall into two categories. One is a “carveout” approach that removes protections from certain categories of content — FOSTA-SESTA did for sex work-related material.

The other is a “bargaining chip” system that ties liability protection to meeting certain standards — the proposed Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT), which, as its name suggests, would make sites demonstrate that they are fighting child sex abuse.

(This would ly have the intended side effect of weakening encryption for private messaging.) This approach is often bundled with broader data privacy and tech regulation proposals, which are covered in more detail in a separate guide.

To date, legislators have paid less attention to online marketplaces Airbnb, which also benefits from the liability shield created by Section 230.

So far, the only bill to pass committee is the EARN IT Act, which was amended into a milder version before advancing.

What changes are congressional Democrats proposing?

Democrats have largely been concerned with getting platforms to remove more content because of the harms associated with hate speech, terrorism, and harassment. To facilitate this, they’ve helped introduce several bipartisan proposals to erode Section 230.

Sen. Richard Blumenthal (D-CT) was a sponsor of the EARN IT Act and is a frequent critic of Section 230’s protections. Sen. Brian Schatz (D-HI) has proposed an alternative called the Platform Accountability and Consumer Transparency (PACT) Act, which focuses on requiring websites to transparently report how they moderate content.

What changes are congressional Republicans proposing?

The most serious Republican effort to rewrite Section 230 has come not from Congress, but from the Department of Justice. In June 2020, Attorney General William Barr released a series of recommendations for how Section 230 might be reformed, playing off a string of workshops earlier in the year.

The recommendations include new restrictions on cyberstalking and terrorism, which would ly result in more proactive moderation efforts, along with measures intended to punish arbitrary or discriminatory moderation.

Barr’s proposal would only grant immunity for moderation decisions that are “done in accordance with plain and particular terms of service and accompanied by a reasonable explanation” — a far narrower scope than the current law.

Barr’s recommendations would need to be passed by Congress to have any legal force, but so far, they’re the best blueprint congressional Republicans have for what mainline conservative 230 reform might look .

A smaller faction of Republicans has focused entirely on restricting moderation immunity, punishing platforms that moderate in a biased or otherwise discriminatory way. Sen.

Josh Hawley (R-MO) has also proposed a bill that would bind platforms to a “duty of good faith,” entitling users to significant monetary damages if they were able to show in court that the platform had breached its duty.

More extreme versions of that approach include Rep. Paul Gosar (R-AZ)’s Stop the Censorship Act, which sought to prevent platforms from removing content that they found “objectionable.

” (That would mean they could only remove posts that violated the law.

) Introduced in 2019, Hawley’s Ending Support for Internet Censorship Act would have required platforms’ content moderation teams to be certified as politically “neutral” by a bipartisan panel in order to retain their liability protections.

Neither proposal has so far advanced. Republicans are also behind the EARN IT Act described above.

What do tech companies think the government should do?

Among tech platforms, has led the call for more regulation. In February 2020, CEO Mark Zuckerberg said the company ought to be regulated as something in between a telecommunications company and a newspaper. That same day, released a white paper laying out the approach it would prefer regulators take.

The approach rests on a handful of core assumptions: that platforms are global and thus subject to many different laws and competing cultural values; that they are intermediaries for speech rather than traditional publishers; that they will change constantly for competitive reasons; and that they will always get some moderation decisions wrong. (There’s another assumption buried in that last one: that they will never hire enough people to screen content in advance or in real time.)

argues that the government could hold tech platforms accountable for certain key metrics: holding violating posts below a certain number of views, for example, or setting a mandatory median response time for removing them.

But they note that any of these efforts could create perverse incentives.

If platforms are required to remove certain posts within 24 hours, for example, they are ly to simply stop looking at older posts while they focus on posts that are still within the 24-hour window.

What happens next?

Section 230 reform may take a different direction after Biden’s inauguration, but it’s ly to remain on the table, and Republicans will ly continue to push for their own changes to the law.

Section 230 will probably be modified again. The big questions are when — and how.

Update May 28th, 3:45PM ET: Updated with the details of President Trump’s proposed executive order.

Update June 18th, 1:30PM ET: Updated with details of the Barr recommendations and Hawley’s “duty of good faith” bill.

Update December 21st, 10:45AM ET: Updated with details of the Biden administration’s Section 230 plans.

Update December 29th, 4:41PM ET: Updated with Trump’s efforts to package Section 230 repeal with enhanced direct stimulus payments.

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Donald Trump and Joe Biden vs. and : Why Section 230 could get repealed in 2021

Should Section 230 be revised?

The Communications Decency Act, or Section 230, was passed in 1996. USA TODAY

In 1996, Congress passed the Communications Decency Act, which fueled the rise of the modern internet and technology giants , Google and . That law contains a provision that has emerged as one of the nation's most hotly contested issues.

Section 230 allowed these companies to largely regulate themselves, shielding them from liability for much of the content their users post on their platforms and granting companies legal immunity for good faith efforts to remove content that violates their policies.

The key part of the provision – sometimes called the “26 words that created the internet” – reads, “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.”

What that boils down to: Individual users can be sued for content they post, but generally the platforms cannot, at least not successfully.

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There are exceptions such as federal crimes and intellectual property claims. Lawmakers chipped away at Section 230 protections in 2018 by passing a law that makes it easier to sue internet platforms that knowingly aid sex trafficking. 

But broadly speaking, internet companies have wide latitude to decide what can stay on their platforms and what must come down. Internet platforms say they could not exist in their current form without these protections.

“We have to get rid of Section 230,” President Donald Trump said at a rally in Georgia on Monday night, referring to the “horrendous tech giants.” “Or you’re not going to have a country very long.”

Why do critics hate Section 230?

Democrats and Republicans agree that the nation's leading tech companies have become too powerful and need tougher regulation. Both parties threaten to narrow or repeal Section 230.

Bottom line, they say, social media platforms should be held more accountable for how they police content. But their reasons are very different.

Democrats, including President-elect Joe Biden, urged Congress to revise Section 230 to force tech companies to remove hate speech and extremism, election interference and falsehoods. House Speaker Nancy Pelosi, D-Calif., called Section 230 a gift to Big Tech. “It is not the question that that could be removed,” she said in 2019.

Trump and many Republicans accuse tech companies of censoring conservatives and limiting their reach on social media.

CEO Jack Dorsey appears on a monitor behind a stenographer as he testifies remotely during the Senate Commerce, Science, and Transportation Committee hearing “Does Section 230's Sweeping Immunity Enable Big Tech Bad Behavior?” on Oct. 28. (Photo: Pool, Getty Images)

A number of bills that would hold , Google and legally accountable for how they moderate content are circulating in Congress, including the EARN IT Act and the PACT Act. 

Jeff Kosseff, an assistant professor of cybersecurity law in the U.S. Naval Academy’s Cyber Science Department, said it would be challenging for Congress to reach consensus on how to alter Section 230.

“You have two competing views as to what platforms should be doing,” Kosseff, author of “The Twenty-Six Words That Created the Internet,” told USA TODAY last year. “It’s hard to imagine what would satisfy everyone who is upset with the tech companies.”

If Section 230 were repealed, he said, platforms would conduct more moderation, not less, because of the increased risk of their liability for content users post. 

What do and say?

’s Jack Dorsey and 's Mark Zuckerberg say their platforms strike a balance between promoting free expression and removing harmful content. They acknowledge making some enforcement errors but say their policies are applied fairly to everyone.

Both tech leaders said they're open to revising Section 230. Zuckerberg told lawmakers in November: “We would benefit from clearer guidance from elected officials.”

Censorship or conspiracy theory? Trump supporters say and censor them, but conservatives still rule social media

Dorsey said the platforms should be more open with users about how content moderation decisions are made and should offer a straightforward way to appeal moderation decisions. He said he’d to see users be able to opt algorithms that determine what content they see on the platform.

What’s Trump’s beef with Section 230?

Trump’s attacks on Section 230 intensified in the final weeks of his reelection campaign as social media companies labeled or removed posts they deemed false or misleading or that could cause harm or incite violence.

President-elect Joe Biden and President Donald Trump are critical of Section 230 but for different reasons. (Photo: AP)

The attacks intensified after the election as social media companies flagged the president’s allegations of election rigging and voter fraud. Trump tried to repeal Section 230 through the National Defense Authorization Act. 

What does Hunter Biden have to do with it?

Charges of anti-conservative bias raged before the presidential election when and limited the spread of a New York Post article about Biden’s son Hunter, which cited unverified emails reportedly uncovered by allies of Trump.

Zuckerberg said throttled the story while it was being fact-checked after warnings from the I to be on “heightened alert” about “hack and leak operations” in the final days before the 2020 election.

initially blocked links to the article, saying the links included people’s personal information and relied on hacked materials, both violations of its policies, then it reversed itself.

Do and censor conservatives?

Conservatives have complained for years that social media companies silence the political speech of right-leaning users.

Nine in 10 Republicans and independents who lean toward the Republican Party said it’s at least somewhat ly that social media platforms censor political viewpoints they find objectionable, up slightly from 85% in 2018, according to a report in August from the Pew Research Center.

CEO Mark Zuckerberg testifies before the House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law on Online Platforms and Market Power on July 29, 2020, on Capitol Hill in Washington. (Photo: Pool photo from Getty Images)

Researchers such as Steven Johnson, an information technology professor at the University of Virginia McIntire School of Commerce, have found no evidence to support GOP grievances that conservative voices are squelched​​​​​.

Rather, they said, social media algorithms don’t have a political affiliation or party but favor content that elicits strong reactions from users.

Studies consistently show that conservative voices and viewpoints dominate the conversation on these platforms.

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The Georgia runoffs could decide the fate of Section 230 – along with the future of Big Tech

Should Section 230 be revised?

Joe Biden's takeover from President Trump is going to mostly consist of rolling back broad swathes of Trump's agenda, but in one area Biden is weirdly taking up the torch from Trump – repealing the laws that protect Big Tech.

Section 230 of the Communications Decency Act is a part of US law that provides tech companies with two important protections. Firstly, it gives them broad authority to decide how to moderate content on their platforms.

Secondly, it shields them from liability for what users post. It has been incredibly influential in giving the Big Tech companies the power they wield today, and has been referred to as “the 26 words that created the internet.

Over the course of the last year, Trump has threatened to revoke Section 230 because he believes the tech companies use their moderating authority to suppress conservative views.

In May, he signed an executive order instructing federal regulators to amend Section 230, which resulted in the DOJ proposing legislation to Congress in September and the FCC promising to examine the law's interpretation in October.

Biden has also voiced support for repealing Section 230, although his focus is on harmful content rather than censorship.

In an interview with the New York Times in January, Biden said the law should be “revoked, immediately” and highlighted the way misinformation can spread unchecked on platforms such as .

This week a senior Biden staffer signaled regulating harmful disinformation on could be a priority for the administration.

If Section 230 is changed at all, it could alter the landscape of the internet as we know it, but Biden will have to untangle the various motivations for reform and repeal, if he is to push through any changes.

Business Insider spoke to four legal experts about what a Biden administration means for the future of Section 230. 

It will come down to who controls the Senate

All four experts highlighted that a major hurdle for Biden could be bipartisan division on how exactly to deal with Section 230. Scott Shackelford, associate professor of business law and ethics at Indiana University, said whether Biden will be able to fully unravel Trump's projects and pursue his own agenda depends on the outcome of the Georgia runoffs in January.

“If the Democrats are able to gain control of the upper chamber, then they will be able to use the Congressional Review Act to roll back any new rules passed in the waning months of the Trump administration,” he said.

More generally, if the GOP retains control of the Senate, it could make policymaking on Section 230 extremely difficult.

Eric Goldman, a professor at Santa Clara University School of Law, said: “The Democrats and the Republicans disagree deeply about why Section 230 is a problem and how to fix it, and that partisan disagreement makes it hard to predict what reforms can get through.”

He added that if the chambers are under the control of different parties, “then only bipartisan proposals have a chance of succeeding, and those will be hard to navigate given the diversity of views about Section 230.”

CEO Jack Dorsey appearing on-screen at an October 28 congressional hearing on Section 230. Greg Nash/Pool via REUTERS TPX IMAGES OF THE DAY

This division was clear to see in the most recent hearing on Section 230, which took place on October 28. CEOs from , Google, and all testified before Congress. While Republican lawmakers grilled them on specific instances of perceived anti-conservative bias, Democratic representatives decried the hearing itself and used their time to criticize the GOP.

The issue of harmful content could also be particularly rankling to GOP lawmakers.

Shackelford said: “It may be politically challenging to address in a divided government, given the extent to which removing Section 230 would encourage the s of , , and to err on the side of taking down controversial content, disinformation, and hate speech that is often though certainly not always spread by right-wing groups.”

Don't expect anything til January at the earliest

All four experts agreed we won't see any movement on Section 230 until after Biden is inaugurated on January 20, even if Trump decides to double down.

“Even in the most optimistic scenario any final rule will be challenged immediately in court and be put on hold. Plus, any executive action in this context cannot fundamentally change Section 230, not without Congressional action,” said Shackelford. 

After his inauguration, it's ly that Biden will roll back Trump's May executive order, as it is focused on allegations of anti-conservative censorship rather than harmful content.

Read more: Big Tech should prepare for pushback from Vice President-elect Kamala Harris in these 3 areas

Goldman said rescinding the executive order would provide Biden with the most direct route for pursuing his legislative agenda.

June DeHart, an attorney specializing in policymaking proceedings at Manatt law firm, added: “President Biden will issue Executive Orders, as well as work with Congress on legislation and utilize the full toolbox US Presidents have. He very well could roll back the Trump order since he has voiced concern that social media isn't doing enough to stop the spread of misinformation rather than censorship.”

Trump may have given Biden something to work with

Richard Lawson, a partner at Gardner Brewer Martinez-Monfort law firm, said Trump's crusade against Section 230 won't be entirely useless to Biden. He believes the groundwork already done by the DOJ could end up being of use to the new administration – specifically a series of recommendations published in June.

“These proposals were carefully developed after extensive review and input from many different perspectives – government, technology, and consumers. This will provide a great starting point even for a Democratic administration to pick up the issue and develop it,” Lawson said.

Specifically, he thinks the DOJ's proposals mean reforms to Section 230 could be folded into broader antitrust regulation actions.

“[The DOJ] call for Section 230 to be applicable in federal civil enforcement efforts. This could be viewed to include antitrust efforts from DOJ, as well as consumer protection efforts from the FTC.

If that proposal has any legs, you can expect to see efforts to include state attorney general enforcement as well.

While a subtle change, this could have massive consequences, so I think you can expect a tremendous amount of opposition from industry on this issue,” he said.

Goldman said Biden is also ly to take on Big Tech in a more holistic way than Trump. “Un Trump, I don't expect Biden to punitively target individual companies in fits of vindictiveness,” he said.

According to DeHart, the one thing we can also expect to see is the Big Tech CEOs being hauled in to answer more questions from Congress.

“I fully expect more hearings on these issues, as opposed to fast action. Section 230 is controversial and Democrats and Republicans come to the issue from different perspectives,” she said, pointing to a Senate Judiciary Committee hearing scheduled for November 17 entitled “Breaking the News: Censorship, Suppression, and the 2020 Election.”

So no matter what happens in January, expect to see more of Jack Dorsey's wizard-beard.


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