The Plan To Sunset Section 230 Is About A Rogue Congress Taking The Internet Hostage If It Doesn’t Get Its Way
If Congress doesn’t get Google and Meta to agree to Section 230 reforms, it’s going to destroy the rest of the open internet, while Google and Meta will be just fine. If that sounds stupidly counterproductive, well, welcome to today’s Congress.
As we were just discussing, the House Energy and Commerce committee is holding a hearing on the possibility of sunsetting Section 230 at the end of next year. This follows an earlier hearing from last month where representatives heard such confusing nonsense about Section 230 that it was actively misrepresenting reality.
But, based on that one terribly misleading hearing, the top Republican (Cathy McMorris Rodgers) and Democrat (Frank Pallone) on the committee created this bill to sunset the law, along with a nearly facts-free op-ed in the Wall Street Journal making a bunch of blatantly false claims about Section 230. In writing about that bill, I complained that it was ridiculous that neither representative could bother to walk down the hall to talk to Senator Wyden, who coauthored Section 230 and could explain to Rodgers and Pallone their many factual errors.
As I said in last week’s Ctrl-Alt-Speech podcast, they were basically holding a gun to the head of the internet and saying that if Google and Facebook didn’t come up with a deal to appease Congress, Congress would shoot the internet dead.
Now, Wyden and his Section 230 co-author, former Rep. Chris Cox, have penned their own WSJ op-ed that basically makes the same point, with the brilliant title: Buy This Legislation or We’ll Kill the Internet. Because that’s exactly what this “sunset” bill is about. It’s demanding that “big tech” (Meta and Google) come up with a plan to appease Congress, or Congress will effectively kill the internet, by making it nearly impossible for smaller sites to exist.
Just one of the many nonsensical points of this plan is why Rodgers and Pallone think that Meta and Google’s interests are aligned with the wider internet, its users, and smaller sites. There are tons of other sites on the internet that would be way more damaged by removing Section 230.
But Cox and Wyden are pretty clear in pointing out just how wrong all this is. They highlight this trope of threatening to kill something if someone doesn’t get their way:
A 1973 National Lampoon cover featured a dog with a gun to its head. The headline: “If You Don’t Buy This Magazine, We’ll Kill This Dog.” The image is reminiscent of how Congress approaches its most serious responsibilities
This is tragically true. It’s how Congress has handled the debt ceiling for many years now. It’s how Congress has dealt with reform (or, really, lack thereof) of our deeply flawed surveillance system. But, it’s extra ridiculous to have it happen here.
The latest such exercise will be on display at a House hearing on Wednesday, where members of both parties will threaten to repeal the clear-cut legal rules that for decades have governed millions of websites. The dog with a gun to its head is every American who uses the internet.
The law in question is Section 230 of the 1996 Communications Decency Act. The statute provides that the person who creates content online is legally responsible for it and that websites aren’t liable for efforts to moderate their platforms to make them more welcoming, useful or interesting.
Or, as Prof. Eric Goldman (taking inspiration from the opening paragraph in the Wyden/Cox op-ed) made in meme form:
As Cox and Wyden make clear, the framework of Section 230 is entirely sensible, but only if you actually bother to read it and understand it:
When we introduced this legislation in 1995, when both of us served in the House, two things convinced our colleagues to endorse it almost unanimously.
The first was that the internet was different from traditional publishing. The equation had been flipped. We weren’t dealing with millions of people watching a television network’s production, or subscribers reading a newspaper. Publishing and broadcasting tools were suddenly free or nearly so, offering a microphone to millions of Americans who wouldn’t have the power, clout or fame to be featured on NBC’s “Meet the Press” or in Time magazine.
The second was that without new legislation, the law perversely penalized content moderation. Under the old rules of publisher liability, only an “anything goes” approach would protect a website from legal responsibility for user-created content. Prohibiting bullying, swearing, harassment, and threats of violence could be legally disastrous for any site. It was clear, then as now, that if the law were to encourage such a hands-off approach, the internet would turn into a cesspool.
It’s important to remember this history when evaluating the merits of sunsetting Section 230,as the House proposal intends. According to the bill’s text, if Congress can’t agree on a successor to Section 230 by Dec. 31, 2025, websites from Yahoo and Etsy to the local restaurant hosting customer reviews will become liable for every syllable posted on the site by a user or troll. A single post can generate claims that run into the millions of dollars.
I might challenge the wording in that last paragraph a little bit (though I understand why it was written that way within the confines of a short op-ed). Without Section 230, sites don’t automatically become fully liable for content posted by users (some people assume this, incorrectly). Rather, their liability becomes an open question, subject to the results of litigation that is extremely costly whether or not it is later determined that the underlying post can reasonably generate a claim.
This is the part that often gets lost in this discussion. Without Section 230, it flings open the court doors for all sorts of vexatious litigation that is extraordinarily costly just to even determine if a site is liable in the first place. And when that happens, there is tremendous pressure on websites to do a few things. First is to simply remove any content that is at risk of a lawsuit (or when threatened by a lawsuit) just to avoid the costly legal fight that might ensue. So the removal of 230 gives people a kind of litigator’s veto: threaten a lawsuit and there’s a good chance the content gets removed.
The other thing is, if a site does get sued, the cost of defending the lawsuit becomes so high that many companies (and law firms and insurance companies) will push them to just settle. The cost of settling for a nuisance fee will often be significantly cheaper than fighting the full litigation, even if the website would have a high likelihood of winning in the end.
The problem without Section 230 is not the actual fear of liability. A lot of it is the cost of proving you shouldn’t be liable, which is orders of magnitude higher without Section 230. But this is also a big part of what critics of Section 230 do not understand (or, if they’re plaintiffs’ lawyers, they want that lever to use against websites).
As Wyden and Cox make clear:
Reverting to this pre-Section 230 status quo would dramatically alter, and imperil, the online world. Most platforms don’t charge users for access to their sites. In the brave new world of unlimited liability, will a website decide that carrying user-created content free of charge isn’t worth the risk? If so, the era of consumer freedom to both publish and view web content will come to a screeching halt.
It is very much a question of “if you don’t alter 230 in a way Congress likes, Congress will shoot the internet.”
It’s ridiculous that we’ve gotten to this point, and that the support for this destruction is effectively bipartisan. The underlying framing of this effort as the false belief that the biggest of the big tech companies, Google and Meta, are the only real stakeholders here is equally ridiculous.
As I’ve said over and over again, that’s not the case. Both of those companies have buildings full of lawyers. They, above anyone else, can shoulder the costs of these lawsuits. It’s all the other sites that cannot and will not.
At a time when it’s clear that Google and Meta are effectively fine with putting the open web into managed decline and building up their own walled gardens, removing Section 230 will accelerate that process. It will give the biggest internet companies that much more power, while harming everyone else, with it being felt most keenly by the end users who rely on other sites and services beyond Google and Meta.
So the metaphor here really seems to be Congress pointing a gun at the open internet and threatening to shoot it if Google and Meta (which do not represent the open internet) don’t dance to Congress’ tune. The whole situation is truly messed up.