The Uncertain Fate of Section 230

Censorship, First Amendment, Social Media

Section 230, part of the Communications Act of 1934 and 1996 Communications Decency Act has been discussed a lot over the past year. Section 230 limits how much online platforms can be held liable for the content users share on their platforms.

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.

Former President Trump signed the “Preventing Online Censorship” executive order in May 2020.
Former President Trump signed the “Preventing Online Censorship” executive order in May 2020.

On May 28, 2020, the former president signed Executive Order (EO) 13925, titled “Preventing Online Censorship,” which would have changed Section 230 to remove protections for companies such as Twitter and Facebook. In the order, the former president claimed that online social media platforms engaged in selective censorship, even stating in the order that “Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias.” This echoes the belief that social media companies censor conservative voices, however a report from New York University provides data showing that not only is there no anti-conservative bias on Facebook and Twitter, but conservative-leaning sources frequently outperform others in terms of shares and engagement.

On May 14, President Joe Biden revoked a slew of Executive Orders enacted by Former President Trump during his final nine months in office, including the aforementioned “Preventing Online Censorship” order. Despite this reversal of the previous administration’s policy, Biden has also expressed opposition to Section 230. In a New York Times interview during the Democratic primary season, Biden stated that “[Section 230] immediately should be revoked, number one. For Zuckerberg and other platforms… It should be revoked because [Facebook] is not merely an internet company. It is propagating falsehoods they know to be false.” Another argument Biden made claimed that there is a lack of editorial impact on Facebook. This is interesting because while both Biden and Trump want to revoke Section 230 protections, it is for opposite reasons.

Due to the revocation of the “Preventing Online Censorship” EO, Section 230 remains intact at the moment. There are now two questions to ask: what’s next in terms of policy surrounding this issue?; Does President Biden still support changing Section 230? In February, a few senators of the Democratic Party introduced Senate Bill 299, the Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act, or the SAFE TECH Act for short. The goal of the bill is to amend Section 230 “to reaffirm civil rights, victims’ rights, and consumer protections.” So far no further action has been taken on the bill. Other than the revocation of the EOs, Biden has not made any further statements or actions regarding Section 230.

Senators Warner, Hirono, Klobuchar, and Kaine; co-sponsors of the SAFE TECH Act
Senators Warner, Hirono, Klobuchar, and Kaine; co-sponsors of the SAFE TECH Act

So where does the fate of Section 230 temporarily lie? In October 2020, Federal Communications Commission (FCC) General Counsel Thomas Johnson analyzed the FCC’s interpretive authority regarding Section 230. Johnson argues that “Congress gave the [Federal Communications] Commission power to interpret all provisions of the Communications Act of 1934” including amendments to it such as Section 230.

It is clear that there is a lot of ambiguity and uncertainty regarding the future of Section 230 protections. Tech experts explained to NPR that without the law, lawsuits against internet companies regarding user-posted content would succeed. Aaron Mackey, attorney at the Electronic Frontier Foundation, explained that this would lead to platforms such as Facebook and Twitter drastically increasing their content moderation, due to the potential liability.

Fellow OIF blogger Darryl Eschete has previously written about social media and censorship in his post, State Legislatures Eye Regulating Social Media in Wake of ‘Big Tech Censorship.

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