Former Rep. Chris Cox Used His Testimony At Tuesday's Senate Hearing On The Internet's Foundational Law To Do Some Myth-Busting

from the present-at-the-creation dept

Whenever internet-law experts see a new Congressional hearing scheduled whose purpose is to explore whether Section 230—a federal statute that’s widely regarded as a foundational law of the internet—needs to be amended or repealed, we shudder. That’s because we know from experience that even some of the most thoughtful and conscientious lawmakers have internalized some broken notions about Section 230 and have the idea that this statute is responsible for everything that bothers us about today’s internet.

That’s why Tuesday’s Senate hearing about Section 230 was, in its own way, much more calming than earlier hearings on the law have been. Each of the four witnesses had substantive knowledge to share, and even if some witnesses were wrong (at least in my view) on this or that fine point, none of them was grandstanding or (as has often been the case in the past) unwittingly or intentionally deceptive about what might be wrong with 230. Each more or less acknowledged that the law which cyberlaw professor Jeff Kosseff has aptly characterized, in his book of the same name, really does contain “The Twenty-Six Words That Created the Internet.” Even Professor Olivier Sylvain of Fordham Law School, who believes Section 230’s protections to be “ripe for narrowing,” focuses on the courts’ role in interpreting the statute rather than Congress’s role in possibly amending it. Unlike some other hearings, this hearing’s witnesses had no one calling for repeal.

Kosseff, a faculty member at the U.S. naval academy at Annapolis, was himself one of the witnesses on Tuesday’s panel, which was convened by the Senate commerce committee’s Subcommittee on Communications, Technology, Innovation, and the Internet. But even though the hearing’s title as inspired by Kosseff’s book, it was former Representative Chris Cox, now a partner at the Morgan, Lewis & Bockius law firm and a board member at the tech lobbying group NetChoice, who was the star. In the 1990s, Representative Cox was an author and co-sponsor (with then-Representative, now Senator, Ron Wyden) of the bill that became Section 230. Having him as a witness on Tuesday’s panel was a bit like having James Madison show up to testify about what he was thinking when he wrote the Bill of Rights.

Cox’s testimony spotlighted the ways in which the legal immunities built into Section 230 in 1995—immunities that generally shield internet companies for liability for content created by users and subscribers—had given rise to the transformational effect those companies have had in the world of 2020. Just as important, Cox pointed out in his written testimony that the law does not shield service providers who created illegal or tortious content--”in whole or in part”--from legal liability:

Section 230 was written, therefore, with a clear fact-based test:

• Did the person create the content? If so, that person is liable for any illegality.
• Did someone else create the content? Then that someone else is liable.
• Did the person do anything to develop the content created by another, even if only in part? If so, the person is liable along with the content creator.

Cox explained that this approach was aimed to accommodate the realities of being an online service provider but not to allow service providers that are clearly responsible for a crime or civil wrong to be immunized by the statute:

“Rep. Wyden and I knew that, in light of the volume of content that even in 1995 was crossing most internet platforms, it would be unreasonable for the law to presume that the platform will screen all material. We also well understood the corollary of this principle: if in a specific case a platform actually did review material and edit it, then there would be no basis for assuming otherwise. As a result, the plain language of Section 230 deprives such a platform of immunity.”

Cox used this portion of his written testimony to debunk which he called certain “myths” about Section 230—of which the first and most obvious myth is that Section 230 immunizes “websites that knowingly engage in, solicit, or support illegal activity.” Wrote Cox: “It bears repeating that Section 230 provides no protection for any website, user, or other person or business involved even in part in the creation or development of content that is tortious or criminal.”

Another of these myths had to do with the idea that 230’s purpose was to set up a separate legal rules for internet services that don’t apply in the outside world. Cox insists, however, that Section 230 simply extended to the online world the protections brick-and-mortar enterprises already had, in terms of not being liable for content they didn’t fully or partially create. (For example, if I slander someone in a restaurant, the restaurant’s proprietor shouldn’t be held liable for my using his premises to defame someone. I look forward to testing this principle when we’re all going out to restaurants again.)

Other creation myths included the idea that Section 230 was designed just to protect “an infant industry” (so is no longer necessary now that the industry is old enough to vote), or the idea that it was a favor to the tech industry (Cox says the tech companies in the 1990s mostly didn’t know enough to lobby for the provision—or else didn’t even exist then), or the idea that it was part of a “grand bargain” to help then-Senator James Exon pass his anti-porn legislation, then mostly known as the Communications Decency Act. With regard to that last theory, Cox explains that his and Wyden’s draft was “deliberately crafted as a rebuke” to Senator Exon’s approach to online porn. If service providers were going to make the world’s information available to users, Cox and Wyden reasoned, there was no way that any of the services could effectively be responsible for the “indecent” content in libraries and elsewhere that might show up on users’ screens.

The real reason Section 230 was included with Senator Exon’s Communications Decency Act language had to do with the politics of the conference committee that had to work out differences between the House and Senate versions of the Telecommunications Act of 1996. The Cox-Wyden provision was in the House version, but an overwhelming majority of senators had voted for the CDA in the Senate version. Harmonizing the two opposing provisions had some interesting consequences, as Cox’s testimony points out:

When the House and Senate met in conference on the Telecommunications Act, the House conferees sought to include Cox-Wyden and strike Exon. But political realities as well as policy details had to be dealt with. There was the sticky problem of 84 senators having already voted in favor of the Exon amendment. Once on record with a vote one way—particularly a highly visible vote on the politically charged issue of pornography—it would be very difficult for a politician to explain walking it back. The Senate negotiators, anxious to protect their colleagues from being accused of taking both sides of the question, stood firm. They were willing to accept Cox-Wyden, but Exon would have to be included, too. The House negotiators, all politicians themselves, understood. This was a Senate-only issue, which could be easily resolved by including both amendments in the final product. It was logrolling at its best.

“Perhaps part of the enduring confusion about the relationship of Section 230 to Senator Exon’s legislation has arisen from the fact that when legislative staff prepared the House-Senate conference report on the final Telecommunications Act, they grouped both Exon’s Communications Decency Act and the Internet Freedom and Family Empowerment Act into the same legislative title. So the Cox-Wyden amendment became Section 230 of the Communications Decency Act—the very piece of legislation it was designed to counter. Ironically, now that the original CDA has been invalidated, it is Ron’s and my legislative handiwork that forever bears Senator Exon’s label.”

Cox’s explanation should put to rest forever the myth that the Supreme Court’s decision in Reno v. ACLU (1997), when it struck down all other provisions of the Communications Decency Act as unconstitutional, left Section 230 alone as an incomplete fragment rendered meaningless and/or dysfunctional if standing alone. As Cox’s written testimony makes clear, Section 230 was originally crafted as a standalone statute whose purpose was to negate the effect of Stratton Oakmont v. Prodigy (1995)—a case whose judge drastically misread both prior caselaw and the facts of the case he decided—and restore something like state of the online-services law as it was understood after a federal court’s influential decision in 1991 in Cubby v. CompuServe.

One of the unfortunate aspects of Tuesday’s hearing is that Cox’s lengthy first-person account and massive debunking of common myths about Section 230 weren’t heard by most of the Senators or by the viewers who only watched the hearing online. In “person” (Cox, like the other witnesses, was beamed in via a teleconferencing system that I presume was Zoom), the former congressman departed from his written remarks to remind his audience that, among other things, Section 230 gave us Wikipedia, a free resource hosted by the Wikimedia Foundation, that serves most of us in the Western developed countries as a resource every day. This is something I wish more legislators would remember—that Wikipedia depends on Section 230 to exist in its current form and usefulness. Full disclosure: I spent a few years as general counsel and later outside counsel doing work for the Wikimedia Foundation. And, just like any other lawyer who who has worked to protect a highly valued online service, I can testify that we depended on Section 230 a lot.

Still another unfortunate aspect that is that Kosseff’s and Sylvain’s contributions, as well as those of the Internet Association’s deputy general counsel, Elizabeth Banker, were somewhat eclipsed both by Cox’s written testimony and by his live testimony as one of the two fathers of “the twenty-six words that created the internet.” But these tradeoffs were a small price to pay in order to spend so much of Tuesday morning getting myths busted and truths told. Even as someone who’s been dealing with Section 230 for almost as long as Cox has, I can say truthfully that I learned a lot.

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Filed Under: cda 230, chris cox, section 230