Is Section 230 Just For Start-ups? History Says Nope

from the original-intentions dept

One of the arguments for changing Section 230 is that even if we needed it a long time ago when the Internet was new, now that the Internet has been around for a while and some of the companies providing Internet services are quite big, we don't need it anymore. This view is simply untrue: Internet service providers of every size still need it, including and perhaps even especially the big ones because they are the ones handling the greatest volume of user expression.

Furthermore, Section 230 was never specifically aimed at start-ups. Indeed, from the outset it was intended to address the legal problems faced by an established incumbent.

The origin story for Section 230 begins with the Stratton Oakmont v. Prodigy case. In this case a New York state court allowed Prodigy to be sued over speech a user had posted. By doing so the court not only hurt Prodigy right then, in that case, but it threatened to hurt it in the future by opening the door to more lawsuits against it or any other online service provider—which would also be bad news for online expression more broadly as well. In the shadow of this decision services weren't going to be able to facilitate the greatest amount of valuable user expression, or minimize the greatest amount of detrimental. Even back then Prodigy was handling far too many posts by users for it to be possible to vet all, or even most, of them. While that volume might today seem like a drop in the bucket compared to how much expression Internet services handle now, the operative point is that use of online services like Prodigy had already surpassed the point where a service provider could possibly be able to review everything that ever appeared on its systems and make decisions about what to leave up or take down perfectly. If that's what they needed to do to avoid being crushed by litigation, then they were looking at a future of soon being crushed by litigation.

And that was the case for Prodigy even though it was an established service. As an *Internet* service provider Prodigy may have been new to the game because the Internet had only just left the realm of academia and become something that commercial service providers could provide access to. But it was hardly new as an "interactive computer service" provider, which is what Section 230 actually applies to. True, Section 230 contemplates that interactive computer service providers may likely provide Internet-based services, but it doesn't condition its statutory protection on being connected to the Internet. (From 47 U.S.C. Section 230(f)(2): "The term 'interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server…"). To be eligible for Section 230 the service provider simply needs to be in the business of providing some form of interactive computer service, and Prodigy had been doing that for well over a decade as a dial-up service with its own proprietary network—just like CompuServe had long done and eventually America Online did as well.

Furthermore, Prodigy was a service provider started by Sears and IBM (and briefly also CBS). At the time these were some of the largest companies in America. The "big tech" of the era was "Big Blue" (as IBM was known). And while Sears may have managed to bungle itself into irrelevance in the years since, at the time Section 230 was passed there were few companies more expert in remote commerce than it was. Nevertheless it was the needs of these big companies that Congress was addressing with Section 230 because Congress recognized that it wasn't just their needs that it was addressing. The same legal rules that kept start-ups from being obliterated by litigation were the same ones needed to keep the bigger players from being obliterated as well.

The irony, of course, is that Section 230 may have ultimately ended up hurting the bigger players, because in the long run it opened the door to competition that ultimately ate these companies' lunch. Of course, that's what we would still want Section 230 to do: open the door to service providers that can do a better job than the large existing incumbents. It can hardly be said that Section 230 was or is a subsidy to "big tech," then or now, when building that on-ramp for something better is what it has always done and needs to be allowed to continue to do.

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Filed Under: big tech, intermediary liability, section 230, startups