For years, some of the world’s biggest tech companies have been shielded from lawsuits by Section 230 of the Communications Decency Act. But newly proposed legislation could change that — and have major implications for tech companies themselves.
House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and Ranking Member Frank Pallone, Jr. (D-NJ) this week unveiled new, bipartisan legislation that could end the protections afforded tech companies under Section 230 of the Communications Decency Act. In an op-ed in The Wall Street Journal accompanying their legislation, the lawmakers said that while Section 230 had been enacted to allow for the internet’s growth, tech companies have since used it to avoid liability in protecting their users.
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“Unfortunately, Section 230 is now poisoning the healthy online ecosystem it once fostered. Big Tech companies are exploiting the law to shield them from any responsibility or accountability as their platforms inflict immense harm on Americans, especially children,” the lawmakers wrote. “Congress’s failure to revisit this law is irresponsible and untenable. That is why we’re taking bipartisan action.”
The proposed legislation would allow for Section 230 to remain in place, as is, for 18 months. During that period, tech companies and Congress would need to work together to “enact a new legal framework” that would still allow for free expression on the internet while requiring the companies “to be good stewards of their platforms.”
As nebulous as that goal may appear, the lawmakers suggest that a collaborative effort between Big Tech and Congress would ultimately make for a better and more accountable internet.
Section 230 was passed into law in 1996 to protect tech companies from legal liability if users published offensive or otherwise harmful content on their platforms. In practice, the law enabled tech companies to moderate content on their platforms and decide for themselves which content should and shouldn’t be allowed. Critically, and regardless of whether they removed content, the companies couldn’t be sued for what users posted.
While that regulation was critical to allowing tech companies to grow, it also has paved the way for some companies — Meta and Google, among others — to achieve massive scale. If these tech giants were liable for anything users posted to their platforms, they would first need to take on the Herculean task of moderating all content before it’s published and ensure it isn’t offensive — or face the wrath of lawsuits.
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In recent years, Section 230 has come under increased scrutiny by detractors who charge that tech companies have grown too big, that they’re not doing enough to safeguard users, including children, and that they should be held liable for content published on their platforms. Supporters of the Section 230 repeal also argue that smaller tech companies would benefit from a law change because Section 230 has fueled Big Tech’s growth and helped it consolidate power on the internet.
Of course, Big Tech has rejected those claims. For years, the biggest tech companies have argued that Section 230 enables free expression on the internet, allowing their users to say what they truly feel or believe without facing undue moderation. These companies, along with some lawmakers, also have argued that their current scale would enable them to absorb lawsuits if Section 230 is repealed. Smaller startups with fewer resources, however, could buckle under the pressure of moderation and subsequent lawsuits.
Despite some lawmaker support, Section 230 is on decidedly shaky ground. The bill proposed this week indeed has bipartisan support — a difficult task in today’s US Congress — and President Joe Biden has indicated that he would be open to signing a bill repealing Section 230.
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The real question looking forward, however, centers on what happens next. While the newly proposed legislation has support from both Republicans and Democrats, there’s no guarantee it’ll pass through the House and Senate and ultimately land on the President’s desk. Even if it does, there’s no telling how the legislation can change over time as lawmakers get their hands on it.
If Section 230 is repealed, users could be affected in a variety of ways. For one, a direct repeal of Section 330 with no replacement would immediately require tech companies to aggressively moderate all content published on their platforms, meaning users could see some of their content removed. And while it could help smaller tech companies with new ideas on how to build online communities, it’s not beyond the realm of possibility that some of those startups will indeed buckle under moderation and lawsuit pressure.
Perhaps that’s one reason Big Tech has been so aggressive in lobbying Washington. According to Issue One, which reviewed lobbying records, Meta, TikTok parent ByteDance, X, Snap, and Discord combined to spend $30 million on lobbying last year alone, a 12 percent increase compared to 2022. In total, the companies hired 142 lobbyists last year, according to the report. While the Issue One report stopped short of saying exactly what the lobbyists did for the companies, Section 230’s repeal may have been one of the issues on the table.
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The most likely scenario, however, and one that Reps. Rogers and Pallone promoted in their recent legislation, would see Big Tech and Congress come together on new legislation that wouldn’t entirely repeal Section 230. Instead, that legislation would provide some protections for the platforms and free speech, but perhaps make them more accountable for removing certain kinds of content.
“Our bill gives Big Tech a choice,” the lawmakers wrote in their op-ed. “Work with Congress to ensure the internet is a safe, healthy place for good, or lose Section 230 protections entirely.”
But don’t be surprised if Section 230 comes under ever-increasing pressure and for lawmakers and tech companies to find some sort of middle ground in the not-so-distant future.
