The Vital Role Intermediary Protections Play for Infrastructure Providers

from the a-necessary-component dept

More than ever, the Internet powers much of our daily life. From staying in touch with friends and family to our work, healthcare, banking, and education, we rely on it and we take for granted that it will always be there.

But the way that the Internet was built and how it functions were never a fait accompli. An obscure statute—Section 230, a law enacted more than twenty-five years ago—is core to the Internet as we know it today. It’s also frequently misunderstood. In recent years, many critics of Big Tech from across the political spectrum point to Section 230 as the enabling force for a litany of harmful online content and abuses, some of whom contend that its abolition would immediately lead to a better Internet. 

In reality, Section 230 provides a wide range of non-Big Tech actors, including Internet intermediaries, limited immunity allowing them to operate without worrying about liability stemming from content created by others. This legal protection catalyzes and supports the growth of an amazing, vast array of innovative companies that make the Internet what it is today.

There has been ample discussion already of the fundamentals of Section 230, some of it right here in the pages of Techdirt, so it would not be useful for me to go through it all once more. I think it is essential first to clearly identify and describe the key elements of what we collectively call “the Internet,” explaining where and how infrastructure companies fit in. before quickly touching on what Section 230 is and debunking 3 pernicious and persistent myths about it. I will close by giving you 6 real examples of activities that are actually protected by Section 230 and demonstrate why this law is so vital.

The Internet and its infrastructure

The Internet as we know it can be broken down into three sectors: the transmission sector, the infrastructure sector, and the content sector. 

• The transmission sector encompasses all the physical telecommunications pipelines used to deliver content to the end user. For example, Verizon and Comcast are companies whose business historically has been primarily in this sector. 

• The infrastructure sector includes small, medium, and large businesses that exist between the telecommunications transmission providers and the companies that create the content. Infrastructure companies do not create content or transmit it directly to end-users. Rather, they provide the “backbone” services that support storage, security, and other operations necessary for reliable and robust global access to the Internet. A data center--where content is stored and then accessed—is a good example of an Internet infrastructure provider, and there are many more. The Internet Infrastructure Coalition, where I am Executive Director, represents the companies that are squarely in this sector, like VPNs, web hosting companies, data centers, domain name providers, and cloud services.

• The content sector is made up of the people and companies that create content--the words, images, and sounds you experience every time you go online. 

The content sector alone is often understood to be “the Internet,” and the transmission sector usually is seen as the hardware powering “the Internet.” However, these two sectors by themselves are not enough to “make the Internet.” The middle segment, which is the infrastructure sector—is an indispensable, if “unseen,” part of the Internet. 

It is easy to understand why. Can you imagine what the business landscape would have looked like during the COVID-19 pandemic without Internet infrastructure companies reliably connecting professionals to proprietary content via VPNs, or storing and displaying content to students worldwide via data centers? We provide critical services that work without the end user ever realizing we exist. Our services are necessary because of the way the Internet and its governance have evolved at home and abroad. 

The members of the i2Coalition are passionate about ensuring that policymakers understand the vital role of the infrastructure provider sector in maintaining a robust, secure, and competitive Internet ecosystem. Our mission focuses on educating legislators and policymakers about the negative, often unintended ripple effects on our members of poorly crafted, overbroad Internet regulations.

Many independent businesses create unique pieces of software that collectively comprise the Internet’s infrastructure. These “many hands” make for increased innovation and a vibrant, interdependent ecosystem that exists within a globally competitive industry. It is one thing to seek regulatory changes appropriately applicable to all Internet players, but it is highly problematic and counterproductive inadvertently to bring the entire market within the scope of a new rule when the true aim of the regulations is a small number of companies in a separate industry. This is particularly misplaced given the vital role the Internet’s infrastructure has played in the economic recovery from the global pandemic.

What is Section 230?

Section 230 of the Communications Decency Act, enacted in 1996, is the federal law that gives Internet companies protection from liability for user-generated content disseminated on their platforms. 

It is not hyperbole to say that Section 230 is one of the foundational laws upon which the Internet was built. It shaped the Internet by doing something that few regulations do: rather than restricting companies from meeting the statutory definition of an “interactive computer service” it protects them from unfair legal action. The concept of interactive computer service was drafted broadly in the statute to encompass any and all companies that might eventually emerge and be part of the ecosystem of the Internet. 

Since its inception, Section 230 has been instrumental in allowing Internet companies to innovate and moderate content and in helping to promote freedom of expression online. Even more, Section 230 has enabled online businesses to offer products, services, and features that users expect.

Certainly, no law or policy is perfect, and legitimate discussions of improving Internet regulation can be useful. But much of the current harsh and inflammatory rhetoric about Section 230 is sustained by myths rather than an accurate understanding of the full nature of its scope and intent.

The i2Coalition believes it is imperative to call out and address these misperceptions, as the range and number of Section 230 reform proposals pose significant liability risks for all Internet infrastructure service providers. 

3 Myths about Section 230 

The first myth is that 230 was a sweetheart deal in Congress for the largest social media companies. Reality easily topples this myth. Section 230 was enacted in1996, six years before Friendster was launched, and eight years before Facebook debuted. Section 230 had in fact been actively leveraged in beneficial ways by Internet infrastructure companies, libraries, and educational institutions long before our current concept of social media became a policy concern.

A second interconnected myth is that even if it was not built specifically for social media, it is still a set of special rules for Internet companies. The truth is that Section 230’s application goes well beyond “Internet companies.” Indeed, companies in the Internet stack meeting the “interactive computer service” statutory definition are covered by Section 230, but its protections also extend to all online intermediaries, which include libraries, archives, and museums, educational institutions, clubs and civic associations, newspapers, magazines, and many more. 

Subsequently, the third myth usually goes like this: Section 230 is too broad because it provides blanket immunity. In fact, Section 230 was never written to provide unlimited liability protection and has a series of exceptions including for federal criminal law and intellectual property law.

6 Truths about Section 230

How Section 230’s protections support a competitive, efficient, and safer Internet ecosystem rarely gets enough public attention. Here are six truths about how Section 230 helps us as Internet infrastructure intermediaries run successful businesses that serve the needs and interests of our customers and other Internet users: 

• Spam filters: When we implement spam filters, we are setting up systems that make judgments on what content is junk mail and what is legitimate mail. Section 230 protects us from being liable for those judgments.

• Setting up keyword blocklists: One way we ensure our networks stay clean and safe is through the use of blacklists, blocklists, and deny lists, which require content-level decisions that Section 230 empowers us to do.

• Anti-malware software: Malware detection software makes content-level systems changes. We can employ those tools that keep us safe because of Section 230 protections.

• Parental control filters: We touch content when we try to keep sensitive content out of the hands of minors in ways that Section 230 allows us to do.

• Reducing drive space: When we change the configuration of a user’s account, we are leveraging the protections that Section 230 provides.

• Allowing web hosting clients to have web forums: Cloud providers could not take on the liability of allowing forums to exist on their networks without Section 230 protections.

Conclusion

Section 230 protections support everyday, foundational work performed by Internet intermediaries, and especially infrastructure companies, to make the Internet work. Its limited liability provisions allow Internet intermediaries to touch content without being considered the publisher of that content for legitimate reasons that are central to making the Internet reliable, efficient, and safe. 

Taking that protection away from millions of companies and other intermediaries in the infrastructure segment of the Internet to address content moderation concerns stemming from a handful of Big Tech social media platforms would be misguided and overbroad, and unjustifiably inflict significant economic harm on multitudes of other responsible providers in the Internet ecosystem.

Christian Dawson is the Co-Founder and Executive Director of the Internet Infrastructure Coalition (i2Coalition) where he is a staunch advocate for Internet freedom as a tool for social and economic growth by fostering the growth and expansion of the Internet economy.

Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here). On October 7th, we'll be hosting a smaller workshop focused on coming up with concrete steps we can take to make sure providers, policymakers, and others understand the risks and challenges of infrastructure moderation, and how to respond to those risks.

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Filed Under: infrastructure moderation, intermediary liability, internet, section 230