from the read-up dept
A few weeks ago we highlighted Ron Wyden's explanation of the intent of Section 230, which was useful since he was one-half of the team that wrote the law. Now, the other half of the team, Chris Cox has written a long and detailed article highlighting how nearly every attempt at reform of 230 misunderstands both the intent and history of the law. On the history side, he highlights the incorrect notion being spread by some that Section 230 was designed as "balance" to go along with the rest of the Communications Decency Act, which was written by porn-hating Senator James Exon. Some have argued that because the two were passed together, but then the rest of the CDA was thrown out as unconstitutional, that now means that 230 is somehow unbalanced.
As Cox points out, that's completely untrue. The Cox-Wyden proposal was designed to be an alternative approach to Exon's obviously crazy approach:
Exon’s Communications Decency Act and Section 230 became law at the same time, even though Section 230 was originally designed as a reproach of Exon. It declared federal regulation of online speech off limits and gave Internet platforms immunity from liability for their own efforts to moderate content. When these two opposite approaches were both included as amendments to a larger bill in a typical Washington backroom political deal, many observers scratched their heads and wondered what Congress was thinking.
But the claim now being made is that the two were actually like legislative epoxy, with one part requiring the other. Since Exon was tossed out, so the argument goes, Section 230 should not be allowed to stand on its own.
In fact, the revisionists contend, the primary congressional purpose back in 1996 was not to give Internet platforms immunity from liability as Section 230 does. Rather, the most important part of their imagined “package” was Exon’s radical idea of imposing stringent liability on websites for the illegal acts of others -- an idea that Exon himself backed away from before his amendment was actually passed. Now, a quarter-century after the Supreme Court threw out the Exon bathwater, the neo-speech regulators are urging us to throw out the Section 230 baby along with it.
The reality is far different than this revisionist history would have it. As the original sponsor of Section 230, I know. I was there.
He describes the whole process by which he and Wyden came up with the plan for Section 230. It was designed to be a balance itself. How to incentivize the most good stuff and the least bad stuff:
We named our bill the Internet Freedom and Family Empowerment Act, to describe its two main components: protecting speech and privacy on the Internet from government regulation, and incentivizing blocking and filtering technologies that individuals could use to become their own censors in their own households. Pornographers illegally targeting minors would not be let off the hook: They would be liable for compliance with all laws, both civil and criminal, in connection with any content they created.
To avoid interfering with the essential functioning of the Internet, the law would not shift that responsibility to Internet platforms, for whom the burden of screening billions of digital messages, documents, images, and sounds would be unreasonable -- not to mention a potential invasion of privacy. Instead, Internet platforms would be allowed to act as “Good Samaritans” by reviewing at least some of the content if they chose to do so in the course of enforcing rules against “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” content.
The linking up of the larger CDA with the Cox-Wyden bill, ("the Internet Freedom and Family Empowerment Act") was a cynical ploy by Exon to get his own anti-porn CDA bill passed. Indeed, the House debate shows overwhelming support for what became 230 and overwhelming disagreement with the Exon anti-porn bill:
In the end, not a single representative spoke against the bill. The final roll call on the Cox-Wyden amendment was 420 yeas to 4 nays. It was a resounding rebuke to the Exon approach in his Communications Decency Act. The House then proceeded to pass its version of the Telecommunications Act -- with the Cox-Wyden amendment, and without Exon.
Putting the two bills together was a political process:
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.
As Cox notes, he and Wyden always intended Section 230 to stand on its own:
The notion that the Communications Decency Act and Section 230 were conceived together is completely wrong. So is the notion that Exon enjoyed lasting congressional support. By the time the Telecommunications Act completed its tortuous legislative journey, support for the CDA had dwindled even in the Senate, as senators came to understand the mismatch between problem and solution that the bill represented. With the exception of its most passionate supporters, few tears were shed for the CDA at its final demise in 1997. Exon had retired even before his law was declared unconstitutional, leaving few behind him willing to carry the torch. His colleagues made no effort to “fix” and replace the Exon Amendment, after the amendment was unanimously struck down by the Supreme Court.
Meanwhile Section 230, originally introduced in the House as a freestanding bill, H.R. 1978, in June 1995, stands on its own, now as then. Its premise of imposing liability on criminals and tort-feasors for their own wrongful conduct, rather than shifting that liability to third parties, operates independently of (and indeed, in opposition to) Sen. Exon’s approach that would directly interfere with the essential functioning of the Internet.
Cox then concludes by talking about how important 230 is to a functioning internet:
It is also useful to imagine a world without Section 230. In this alternative world, websites and Internet platforms of all kinds would face enormous potential liability for hosting content created by others. They would have a powerful incentive to limit that exposure, which they could do in one of two ways. They could strictly limit user-generated content, or even eliminate it altogether; or they could adopt the “anything goes” model through which CompuServe originally escaped liability before Section 230 existed.
We would all be very much worse off were this to happen. Without Section 230’s clear limitation on liability it is difficult to imagine that most of the online services on which we rely every day would even exist in anything like their current form.
We're now facing many calls by people who seem to think that bringing back Exon's version of the CDA is necessary to "balance" 230. It wasn't true back when the bill passed (and, indeed, the rest of the CDA was found unconstitutional) and it's certainly not true now.
There are much more details and history in Cox's essay, and I recommend reading the whole thing.
Filed Under: chris cox, history, intermediary liability, ron wyden, section 230
