Reminder: Just A Few Days Left Before Our '230 Matters' Conversation With Section 230 Authors Ron Wyden & Chris Cox

from the don't-miss-it dept

Get your tickets for Section 230 Matters before February 23rd »

There are just a few days left until Tuesday, February 23rd, and our Section 230 Matters event, celebrating Section 230, including a discussion with the two coauthors of the law, Chris Cox and Senator Ron Wyden. The event starts at 12:30pm PT. We're using a cool virtual events platform called Remo that will allow for networking/conversation prior to the panel. We'll take audience questions, via a built in system during the discussion, and then have post-panel table discussions.

This will be a fun and interesting event -- and also a way to support Techdirt, helping us to continue our reporting on Section 230 at a moment when it is literally front page news (for all sorts of ridiculous reasons). We look forward to seeing many of you next week!

Filed Under: 230 matters, chris cox, ron wyden, section 230

230 Matters: One Week Until Our Event & Discussion With Section 230's Authors

from the join-us dept

Get your tickets for Section 230 Matters before February 23rd »

A week from today on Tuesday, February 23rd at 12:30pm PST, Techdirt is hosting a fundraising event: Section 230 Matters, a celebration for 25 years of Section 230 featuring both of its authors: Chris Cox and Senator Ron Wyden.

For reasons I still don't fully understand, Section 230 remains under attack from pretty much all corners. The law that has helped enable so many amazing services is constantly being blamed for an array of problems -- most of which are totally unrelated to Section 230. It's blamed for people saying bad things online. It's blamed for targeted advertising (which makes no sense at all). It's blamed for too little moderation, and too much moderation. It's blamed for who won elections and who lost elections.

But what almost no one does is look at how it has created many amazing things, including the ability for us to build a community here at Techdirt. It's enabled tons of other communities around the globe, often connecting people who had no way to connect before. Before the internet, most communities were limited to people in your geographic region. And that's fine for a small segment of communities, but is quite limiting in many cases -- and sometimes actively problematic when your interests, identity, needs or calling are frowned upon or denied by your local community.

Section 230 has enabled millions of different communities to form around all sorts of topics and interests. And, yes, some of those communities are problematic, but so many more are actively helpful and useful. And yet, somehow, we tend to ignore all of the good that 230 has enabled and focus narrowly on the few people with ill intent.

And thus, as we hit Section 230's 25th anniversary, we felt it deserves something of a party.

Apparently, many of you have agreed. We're both happy and humbled at the response to our event (on a cool events platform that also owes its existence to things like Section 230), to the point that may run out of seats for attendees to the event before long. If you're interested in attending (or sponsoring) please consider doing so soon!

Get your tickets for Section 230 Matters before February 23rd »

Filed Under: 230 matters, chris cox, ron wyden, section 230

Section 230 Matters: A Techdirt Fundraiser To Celebrate 25 Years Of Section 230

from the come-join-us dept

Get your tickets for Section 230 Matters before February 23rd »

Twenty five years ago today, then President Bill Clinton signed the 1996 Telecommunications Act into law. There was a lot in it, including the Communications Decency Act. And, buried within the Communications Decency Act was a part that was originally the Internet Freedom and Family Empowerment Act, written by then Representatives Chris Cox and Ron Wyden, but which is now generally known as Section 230. The rest of the CDA was tossed out as unconstitutional in an important early judicial review of internet regulations, but Section 230 survived. That means we've now made it 25 years with Section 230, and its key "26 words" helping to protect and enable an open internet. For reasons that don't fully make sense, Section 230 is now under assault from both major political parties (though often for diametrically opposed reasons!).

However, while we still have it, we thought it would be nice to throw Section 230 (and the open internet) a 25th birthday party -- and to have both Senator Ron Wyden and Chris Cox come to talk about Section 230, its past and (hopefully) future. So on Tuesday, Feb. 23rd at 12:30pm PT / 3:30pm ET we're hosting Section 230 Matters, which is both a celebration of Section 230, and a fundraiser for Techdirt, so that we can continue to report on Section 230, free speech, the open internet, and more. While the event is, of course, virtual, we're using a wonderful platform called Remo that simulates the experience of actually attending an event. You get to sit at a "table" and talk with the other people at your table, and can move around and talk with and network with other attendees.

The event will consist of some open networking/conversation, some table discussions about 230, and the main presentation of me moderating the conversation with both Cox and Wyden. It should be a really fun time, a chance to celebrate the open internet, and a chance to help support Techdirt and allow us to keep doing what we do.

Get your tickets for Section 230 Matters before February 23rd »

Filed Under: 230 matters, chris cox, ron wyden, section 230

Once Again, Section 230's Authors Feel The Need To Tell Everyone That Section 230 Is Not The Evil You Think It Is

from the listen-to-them-please dept

For not the first time this year, Section 230's authors -- Ron Wyden and Chris Cox -- have felt the need to speak up and debunk some of the many, many myths around Section 230. Their team-up in a filing to the FCC remains one of the most thorough and comprehensive debunkings of 230 myths out there that it should be required reading for anyone criticizing the law. But apparently no one actually reads FCC filings, so they've now taken to the pages of USA Today (which recently ran a nearly fact free attack on 230) to explain once again why Section 230 is so important to the open internet.

The op-ed starts by talking about the movie, The Wolf of Wall Street, about the sketchy fraudulent practices of Jordan Belfort and his company Stratton Oakmont. As 230 fanatics know, that company, Stratton Oakmont, is a huge part of the reason why Section 230 exists. People on stock discussion forums on early internet service Prodigy had criticized the Belfort's company, and rather than go after whoever posted the criticism, Stratton Oakmont sued Prodigy itself. And, incredibly, a judge had initially sided with Stratton Oakmont because Prodigy moderated its forums and pitched itself as a "family friendly" internet service.

Prodigy argued it should not be responsible for the content its users create. It had no way of knowing whether Stratton Oakmont was a fraud or not and had never expressed an opinion on the subject. But a New York court held in favor of the real-life Wolf of Wall Street, exposing Prodigy to enormous liability.

The court specifically cited Prodigy’s efforts at content moderation, aimed at prohibiting online harassment, as the reason for treating it differently than online platforms where “anything goes.” If Prodigy had not attempted to stifle swearing, bullying and “grossly repugnant” content, the court stated, it would not have been liable for damages. 

That ruling is what drew the attention of Cox and Wyden, who realized that if the law worked that way, we'd never have an open internet at all. Sites would be afraid to do any moderation at all -- and then you'd just have garbage, spam, abuse, harassment, porn across the internet.

The alarming message of this case was clear: in the future, online platforms shouldn’t attempt to moderate even the most awful content. Doing so would make them legally responsible for everything their users post.

And that's when Cox and Wyden went to work:

The result of that collective, year-long effort was Section 230 of the Communications Decency Act. The law overturned the result in the Wolf of Wall Street case, by protecting “good Samaritans” who attempt to keep cyberspace safe for all.

So now, Wyden and Cox are not at all happy with the way people continually portray Section 230 in a manner that is completely disconnected from reality. And their number one target... is the President of the United States:

Fast forward to 2020. President Trump has promised to veto the National Defense Authorization Act, even though it passed the House and Senate with veto-proof majorities, in order to draw attention to his concerns with social media platforms that have flagged his content. As a condition for signing the bill, he has called for the complete repeal of Section 230.

But repealing the law entirely would return us to the legal no-man’s land that necessitated Section 230 in the first place. It can’t be that every one of the over 200 million websites available to Americans — all of them governed by Section 230 — will have to either stop publishing their user’s contributions, or let “anything go” — no matter how gross or illegal. The whistleblowers of today would be shut out from sites like Yelp, Glassdoor, TripAdvisor, or any investment message board, all of whom depend on Section 230 to host user reviews and content.

Cox and Wyden point out that Congress has been looking at a bunch of different proposals to reform Section 230, but as they dig into each reform proposal, they notice that there are significant challenges, and each reform that aims to fix one problem, likely creates other problems. But repealing the law entirely, would be a total and complete disaster.

For months, Congress has been sifting through proposals to fine-tune Section 230 for today’s internet and today’s unique challenges. This is by far the wiser course. But it is a difficult business, because for every problem solved there is a new one created.

Example: if platforms are made responsible for everything millions of users post on their sites, they will have to read it all first. This would mark the end of the internet as a forum for real time communication.

It would also force every website hosting user content to create round-the-clock legal and editorial review teams staffed with hundreds or thousands of people to continually monitor every message, video, photo, and blog. Alternatively, websites would face exorbitant legal damages at every turn. That is not realistic.

More realistic is that the many online avenues that ordinary citizens currently use to express themselves would be closed. Hosting user-created content will be too costly and risky. It is difficult to imagine a scenario more chilling of individual speech and the public's right to know.

As they conclude their piece, people agitating for the reform or repeal of Section 230 should "be careful what we wish for" because... "sometimes, those complaining about online speech are doing worse than crying wolf."

This won't stop the disingenuous lying about Section 230, but hopefully it helps to better inform the few people who are first being introduced to the debate by those disingenuous arguments.

Filed Under: chris cox, free speech, ron wyden, section 230, speech

Authors Of CDA 230 Do Some Serious 230 Mythbusting In Response To Comments Submitted To The FCC

from the that's-not-how-any-of-this-works-at-all dept

While there were thousands of comments filed to the FCC in response to the NTIA's insanely bad "petition" to have the FCC reinterpret Section 230 in response to an unconstitutional executive order from a President who was upset that Twitter fact checked some of his nonsense tweets, perhaps the comment that matters most is the one submitted last week by the two authors of Section 230, Senator Ron Wyden and former Rep. Chris Cox. Cox and Wyden wrote what became Section 230 back in the 90s, and have spent decades fighting misinformation about it -- and fighting to keep 230 in place.

In the comment they submitted to the FCC, they respond to all the idiotic nonsense that everyone has been submitting. Again, these are the guys who wrote the actual law. They know what it was intended to do, and agree with how it's been used to date. So they go on a systematic debunking journey through the nonsense. First, they respond to comments that say that the FCC can interpret 230. Nope.

Several commenters have repeated the claim in the Petition that “[n]either section 230’s text, nor any speck of legislative history, suggests any congressional intent to preclude the Commission’s implementation.” In fact, however, as the authors of the legislation and the floor managers of the debate on the bill in the House of Representatives, we can assure you the very opposite is true. We and our colleagues in Congress on both sides of the aisle were emphatic that we were not creating new regulatory authority for the FCC or any other independent agency or executive branch department when we enacted Section 230. Not only is this clear from the legislative history, but it is written on the face of the statute. Unlike other provisions in Title II of the Communications Act, Section 230 does not invite agency rulemaking. Indeed, in a provision that judges interpreting the law have noted is “unusual,” Section 230(b) explicitly provides:

It is the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.

When this legislation came to the floor of the House of Representatives for debate on August 4, 1995, the two of us, together with members on both sides of the aisle, explained that our purpose was to ensure that the FCC would not have regulatory authority over content on the internet. We and our colleagues, Democrats and Republicans alike, decried the unwelcome proregulatory alternative of giving the FCC responsibility for regulating content on the internet, which at the time was being advanced in separate legislation by Senator James Exon...

The Cox-Wyden bill under consideration was intended as a rebuke to that entire concept.

Then, to prove they're not engaging in revisionist history, they cite the speeches they themselves gave about how the whole point of their bill was to keep the FCC from regulating the internet. From Wyden's floor speech at the time:

[T]he reason that this approach rather than the Senate approach is important is … the speed at which these technologies are advancing [which will] give parents the tools they need, while the Federal Communications Commission is out there cranking out rules about ·proposed rulemaking programs. Their approach is going to set back the effort to help our families.

Cox's floor speech was even more direct with the question of whether or not their approach was designed to give the FCC power:

Some have suggested, Mr. Chairman, that we take the Federal Communications Commission and turn it into the ‘Federal Computer Commission’ — that we hire even more bureaucrats and more regulators who will attempt, either civilly or criminally, to punish people by catching them in the act of putting something into cyberspace. Frankly, there is just too much going on on the Internet for that to be effective....

[This bill] will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet —that we do not wish to have a ‘Federal Computer Commission’ with an army of bureaucrats regulating the Internet....

The message today should be, from this Congress: we embrace this new technology, we welcome the opportunity for education and political discourse that it offers for all of us. We want to help it along this time by saying Government is going to get out of the way and let parents and individuals control it rather than Government doing that job for us....

If we regulate the Internet at the FCC, that will freeze or at least slow down technology. It will threaten the future of the Internet. That is why it is so important that we not have a ‘Federal Computer Commission’ do that.

Next, the comment responds to the claims that 230 is "outdated." Nope, claim its authors:

Several commenters, including AT&T, assert that Section 230 was conceived as a way to protect an infant industry, and that it was written with the antiquated internet of the 1990s in mind – not the robust, ubiquitous internet we know today. As authors of the statute, we particularly wish to put this urban legend to rest.

Section 230, originally named the Internet Freedom and Family Empowerment Act, H.R. 1978, was designed to address the obviously growing problem of individual web portals being overwhelmed with user-created content. This is not a problem the internet will ever grow out of; as internet usage and content creation continue to grow, the problem grows ever bigger. Far from wishing to offer protection to an infant industry, our legislative aim was to recognize the sheer implausibility of requiring each website to monitor all of the user-created content that crossed its portal each day.

Critics of Section 230 point out the significant differences between the internet of 1996 and today. Those differences, however, are not unanticipated. When we wrote the law, we believed the internet of the future was going to be a very vibrant and extraordinary opportunity for people to become educated about innumerable subjects, from health care to technological innovation to their own fields of employment. So we began with these two propositions: let’s make sure that every internet user has the opportunity to exercise their First Amendment rights; and let’s deal with the slime and horrible material on the internet by giving both websites and their users the tools and the legal protection necessary to take it down.

The march of technology and the profusion of e-commerce business models over the last two decades represent precisely the kind of progress that Congress in 1996 hoped would follow from Section 230’s protections for speech on the internet and for the websites that host it. The increase in user-created content in the years since then is both a desired result of the certainty the law provides, and further reason that the law is needed more than ever in today’s environment.

Next up: the all too frequent claim that 230 creates a special rule for the internet that is different than for brick and mortar stores, and therefore there's a "double standard." Again, nope.

Several commenters have asserted that Section 230 sets up a “double standard” by treating online businesses differently from “brick-and-mortar” businesses. This represents a fundamental misunderstanding of both the purpose of the law and how it operates in practice.

Section 230 serves to punish the guilty and protect the innocent. Individuals and firms are made fully responsible for their own conduct. Anyone who creates digital content and uploads it to a website is legally liable for what they have done. A website that hosts the content will likewise be liable, if it contributes to the creation or development of that content, in whole or in part. Otherwise, the website will be protected from liability for third-party content.

Section 230 was written to adapt intermediary liability rules long recognized in the analog world for the digital world, applying the wisdom accumulated over decades in legislatures and the courts to the realities of this new technological realm. As authors of the law, we understood what was evident in 1996 and is even more in evidence today: it would be unreasonable for the law to impose on websites a legal duty to monitor all user-created content.

When Section 230 was written, just as now, each of the commercial applications flourishing online had an analog in the offline world, where each had its own attendant legal responsibilities. Newspapers could be liable for defamation. Banks and brokers could be held responsible for failing to know their customers. Advertisers were responsible under the Federal Trade Commission Act and state consumer laws for ensuring their content was not deceptive and unfair. Merchandisers could be held liable for negligence and breach of warranty, and in some cases even subject to strict liability for defective products. In writing Section 230, we—and ultimately the entire Congress—decided that these legal rules should continue to apply on the internet just as in the offline world. Every business, whether operating through its online facility or through a brick-and-mortar facility, would continue to be responsible for all of its legal obligations.

What Section 230 added to the general body of law was the principle that individuals or an entity operating a website should not, in addition to their own legal responsibilities, be required to monitor all of the content created by third parties and thereby become derivatively liable for the illegal acts of others. Congress recognized that to require otherwise would jeopardize the quintessential function of the internet: permitting millions of people around the world to communicate simultaneously and instantaneously, a unique capability that has made the internet “the shining star of the Information Age.” Congress wished to “embrace” and “welcome” this, not only for its commercial potential but also for “the opportunity for education and political discourse that it offers for all of us.” The result is that websites are protected from liability for user-created content, but only to a point: if they are responsible, even in part, for the creation or development of that content, they lose that protection.

The fact that Section 230 established the legal framework for assessing liability in circumstances unique to the internet does not mean that either this framework or the preexisting legal rules do not apply equally to all online and offline businesses. Every business continues to bear the same legal responsibilities when operating in the offline world, and every business is bound by the same statutorily-defined responsibilities set out in Section 230 when operating in the e-commerce realm.

Then there's the question about whether or not the FCC can mandate disclosure and reporting requirements. As Cox and Wyden note, this argument -- pushed strongly by AT&T and the NTIA "borders on the absurd."

The Petition asks the FCC to interpret Section 230 as if it contained explicit requirements mandating terms of service, content moderation policies, due process notice and hearings in which content creators could dispute moderation decisions, and public disclosures concerning these and other matters. The Petition further asks that the FCC impose these specific requirements by rule. Multiple commenters, including AT&T, have endorsed this aspect of the NTIA proposal.

The Petition clearly states NTIA’s understanding that Congress, with “strong bi-partisan support,” intended Section 230 to be “a non-regulatory approach.” In this they are correct. As outlined in Section II above, the legislative history clearly demonstrates that we and our colleagues in Congress intended to keep the FCC and other regulators out of this area. This is reflected in the language of Section 230 itself. Both of us, as the authors of the legislation, made ourselves abundantly clear on this point when the law was being debated.

This fact—and NTIA’s admission of it—makes it all the more illogical for their Petition to ask the Commission to interpret Section 230 as statutory authorization for the FCC to regulate the very subjects that Section 230 itself covers, and which Congress wanted the Commission to stay out of. It surpasses illogic, and borders on the absurd, for the Petition to ask the FCC to use authority that Section 230 clearly does not grant it, in order to divine from the text of the statute explicit duties and burdens on websites that Section 230 itself clearly does not impose.

As Cox and Wyden note, any such interpretation would clearly require new legislation and could not be created, whole cloth, from the mind of an angry President and clueless NTIA staffers with grudges about Section 230.

All of this would require new federal legislation. None of it appears in Section 230, either in the text of the law that we can all read (and that the two of us wrote), or even in the invisible ink which NTIA must believe only it can read.

I get the feeling that Cox and Wyden do not think highly of the NTIA petition.

As for those who commented suggesting that the FCC could interpret Section 230 to include a "negligence" standard, again, this is not how any of this works:

Several commenters, including Digital Frontiers Advocacy, have urged grafting onto Section 230 a requirement, derived from negligence law, upon which existing protections for content moderation would be conditioned. These requirements would add to Section 230 a “duty of care” or a “reasonableness” standard that cannot be found in the statute. As one example, the Petition (which is generically endorsed in its entirety by many individual commenters) would have the FCC require that content moderation decisions be “objectively reasonable,” as compared to the clear language of Section 230, which provides that the decision is to be that of “the provider or user.”

As the authors of this law, and leading participants in the legislative process that led to its enactment in 1996, we can assure the Commission that the reason you do not see any such requirement on the face of the statute is that we did not intend to put one there.

The proposed introduction of subjective negligence concepts would effectively make every complaint concerning a website’s content moderation into a question of fact. Since such factual disputes can only be resolved after evidentiary discovery (depositions of witnesses, written interrogatories, subpoenas of documents, and so forth), no longer could a website prove itself eligible for dismissal of a case at an early stage.

We intended to spare websites the death from a thousand paper cuts that would be the result if every user, merely by filing a complaint about a content moderation decision, could set in motion a multi-year lawsuit. We therefore wrote Section 230 with an objective standard: was the allegedly illegal material created or developed—in whole or in part—by the website itself? If the complaint adequately alleges this, then a lawsuit seeking to hold the website liable as a publisher of the material can proceed; otherwise it cannot.

And if you think Cox and Wyden are done exploring just how absurdly stupid this process has been, you haven't prepared yourself for the next section, in which they respond to the many ridiculous comments suggesting 230 enables the FCC to enforce "neutrality" on internet websites:

The Claremont Institute and scores of individual commenters have complained that particular websites are not politically neutral, and they demand that Section 230’s protection from liability for content created by others be conditioned on proof that a website is in fact politically neutral in the content that it hosts, and in its moderation decisions.

There are three points that must be made in reply. The first is that Section 230 does not require political neutrality. Claiming to “interpret” Section 230 to require political neutrality, or to condition its Good Samaritan protections on political neutrality, would erase the law we wrote and substitute a completely different one, with opposite effect. The second is that any governmental attempt to enforce political neutrality on websites would be hopelessly subjective, complicated, burdensome, and unworkable. The third is that any such legislation or regulation intended to override a website’s moderation decisions would amount to compelling speech, in violation of the First Amendment....

They respond to every idiot who misinterprets the line in the Findings part of Section 230 about "diversity of political discourse" by saying "we meant lots of different sites, not that every site has to host all your nonsense."

Section 230 itself states the congressional purpose of ensuring that the internet remains “a global forum for a true diversity of political discourse.” In our view as the law’s authors, this requires that government allow a thousand flowers to bloom—not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity.

To use an obvious example, neither the Democratic National Committee nor the Republican National Committee websites would pass a political neutrality test. Government compelled speech is not the way to ensure diverse viewpoints. Permitting websites to choose their own viewpoints is.

And then there's that comment that was popular among individual filers (and lots of idiots on Twitter) that because Section 230 allows websites to take down lawful speech, that's somehow a violation of the 1st Amendment. We've discussed many, many, many times how ridiculous that is, but why don't we hear it from Wyden and Cox:

Many individual commenters complained that their political viewpoints have been “censored” by websites ostensibly implementing their community guidelines, but actually suppressing speech. Several of these commenters have urged the FCC to require that all speech protected by the First Amendment be allowed on any site of sufficient size that it might be deemed an equivalent to the “public square.” In the context of this proceeding, that would mean Section 230 would somehow have to be “interpreted” to require this.

Comments within this genre share a fundamental misunderstanding of Section 230. The matter is readily clarified by reference to the plain language of the statute. The law provides that a website can moderate content “whether or not such material is constitutionally protected.”... Congress would have to repeal this language, and replace it with an explicit speech mandate, in order for the FCC to do what the commenters are urging.

Government-compelled speech, however, would be a source of further problems. Because the First Amendment not only protects expression but non-expression, any attempt to devise an FCC regulation that forces a website to publish content it otherwise would moderate would almost certainly be unconstitutional. The government may not force websites to publish material that they do not approve. As Chief Justice Roberts unequivocally put it in Rumsfeld v. Forum for Academic and Institutional Rights (2006), “freedom of speech prohibits the government from telling people what they must say.”...

And then they point out that many commenters don't seem to understand the 1st Amendment:

The answer to the commenters’ complaints of “censorship” must be twofold. First, many of the comments conflate their frustrations about Section 230 with the First Amendment. As noted, it is the First Amendment, not Section 230, that gives websites the right to choose which viewpoints, if any, to advance. Furthermore, First Amendment speech protections dictate that the government, with a few notable exceptions, may not dictate what speech is acceptable. The First Amendment places no such restrictions on private individuals or companies. Second, the purpose and effect of Section 230 is to make the internet safe for innovation and individual free speech. Without Section 230, complaints about “censorship” by the likes of Google, Facebook, and Twitter would not disappear. Instead, we would be facing a thousandfold more complaints that neither the largest online platforms nor the smallest websites are any longer willing to host material from individual content creators.

And changing Section 230 in the manner these commenters seek wouldn't actually help them:

Eroding the law through regulatory revision would seriously jeopardize free speech for everyone. It would be particularly injurious to marginalized viewpoints that aren’t within “the mainstream.” It would present near-insuperable barriers for new entrants attempting to compete with entrenched tech giants in the social media space. Not least of all, it would set a terrible example for the rest of the world if the United States, which created the internet and so much of the vast cyber ecosystem that has enabled it to flourish globally as an informational, cultural, scientific, educational, and economic resource, were to undermine the ability that hundreds of millions of individuals have each day to contribute their content to that result.

In the absence of Section 230, the First Amendment rights of Americans, and the internet as we know it, would shrivel. Far from authorizing censorship, the law provides the legal certainty and protection from open-ended liability that permits websites large and small to host the free expression of individuals, making it available to a worldwide audience. Section 230 is a bulwark of free speech and civil discourse that is more important now than ever, especially in the current political climate that is increasingly hostile to both.

In short, so many of these commenters are confused about the law, the history, the technology, how free speech works, how the internet works, and more. That much of this is also true of the NTIA petition itself is a shame.

The Cox and Wyden comment concludes by underlining the fact that they wrote 230 with the explicit intent of keeping the FCC away from regulating internet websites.

On one point we can speak ex cathedra, as it were: our intent in writing this law was to keep the FCC out of the business of regulating websites, content moderation policies, and the content of speech on the internet. The Petition asks the Commission to reverse more than two decades of its own policy by becoming, at this late stage in the life of Section 230, its regulatory interpreter. In so doing, the FCC would assume responsibility for regulating websites, content moderation policies, and the content of speech on the internet—precisely the result we intended Section 230 to prevent. To reach this perverse result, the FCC would “clarify” the words of Section 230 in ways that do violence to the plain meaning of the statutory text.

One would hope that such a detailed response from the authors of the law would put this whole nonsense to rest. But it won't.

Filed Under: cda 230, chris cox, fcc, intermediary liability, ntia, ron wyden

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.

Filed Under: cda 230, chris cox, section 230

Author Of Section 230 Chris Cox Says All The Critics Are Wrong About The History And Intent Of 230

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

Highlights From Former Rep. Chris Cox's Amicus Brief Explaining The History And Policy Behind Section 230

from the future-reference dept

The Copia Institute was not the only party to file an amicus brief in support of Airbnb and Homeaway's Ninth Circuit appeal of a district court decision denying them Section 230 protection. For instance, a number of Internet platforms, including those like Glassdoor, which hosts specialized user expression, and those like eBay, which hosts transactional user expression, filed one pointing out how a ruling denying Airbnb and Homeaway would effectively deny it to far more platforms hosting far more kinds of user speech than just those platforms behind the instant appeal.

And then there was this brief, submitted on behalf of former Congressman Chris Cox, who, with then-Representative Ron Wyden, had been instrumental in getting Section 230 on the books in the first place. With this brief the Court does not need to guess whether Congress intended for Section 230 to apply to platforms like Airbnb and Homeaway; the statute's author confirms that it did, and why.

In giving insight into the statutory history of Section 230 the brief addresses the two main issues raised by the Airbnb appeal – issues that are continuing to come up over and over again in Section 230-related litigation in state and federal courts all over the country: does Section 230 apply to platforms intermediating transactional user expression, and does Section 230's pre-emption language preclude efforts by state and local authorities to hold these platforms liable for intermediating the consummation of the transactional speech. Cox's brief describes how Congress intended both these questions to be answered in the affirmative and thus may be relevant to these other cases. With that in mind, we are archiving – and summarizing – the brief here.

To illustrate why Section 230 should apply in these situations, first the brief explains the historical context that prompted the statute in the first place:

In 1995, on a flight from California to Washington, DC during a regular session of Congress, Representative Cox read a Wall Street Journal article about a New York Superior Court case that troubled him deeply. The case involved a bulletin board post on the Prodigy web service by an unknown user. The post said disparaging things about an investment bank. The bank filed suit for libel but couldn’t locate the individual who wrote the post. So instead, the bank sought damages from Prodigy, the site that hosted the bulletin board. [page 3]

The Stratton Oakmont v. Prodigy decision alarmed Cox for several reasons. One, it represented a worrying change in judicial attitudes towards third party liability:

Up until then, the courts had not permitted such claims for third party liability. In 1991, a federal district court in New York held that CompuServe was not liable in circumstances like the Prodigy case. The court reasoned that CompuServe “ha[d] no opportunity to review [the] contents” of the publication at issue before it was uploaded “into CompuServe’s computer banks,” and therefore was not subject to publisher liability for the third party content." [page 3-4]

It had also resulted in a damage award of $200 million dollars against Prodigy. [page 4]. Damage awards like these can wipe technologies off the map. If platforms had to fear the crippling effect that even one such award, arising from just one user, could have on their developing online services, it would dissuade them from being platforms at all. As the brief observes:

The accretion of burdens would be especially harmful to smaller websites. Future startups, facing massive exposure to potential liability if they do not monitor user content and take responsibility for third parties’ legal compliance, would encounter significant obstacles to capital formation. Not unreasonably, some might abjure any business model reliant on third-party content. [page 26]

Then there was also a third, related concern: according to the logic of Stratton Oakmont, which had distinguished itself from the earlier Cubby v. Compuserve case, unlike Compuserve, Prodigy had "sought to impose general rules of civility on its message boards and in its forums." [page 4].

The perverse incentive this case established was clear: Internet platforms should avoid even modest efforts to police their sites. [page 4]

The essential math was stark: Congress was worried about what was going on the Internet. It wanted platforms to be an ally in policing it. But without protection for platforms, they wouldn't be. They couldn't be. So Cox joined with Senator Wyden to craft a bill that would trump the Stratton Oakmont holding. The result was the Internet Freedom and Family Empowerment Act, H.R. 1978, 104 Cong. (1995), which, by a 420-4 vote reflecting significant bipartisan support, became an amendment to the Communications Decency Act – Congress's attempt to address the less desirable material on the Internet – which then came into force as part of the Telecommunications Act of 1996. [page 5-6]. The Supreme Court later gutted the indecency provisions of the CDA in Reno v. ACLU, but the parts of the CDA at Section 230 have stood the test of time. [page 6 note 2].

The statutory language provided necessary relief to platforms in two important ways. First, it included a "Good Samaritan" provision, meaning that "[i]f an Internet platform does review some of the content and restricts it because it is obscene or otherwise objectionable, then the platform does not thereby assume a duty to monitor all content." [page 6]. Because keeping platforms from having to monitor was the critical purpose of the statute:

All of the unique benefits the Internet provides are dependent upon platforms being able to facilitate communication among vast numbers of people without being required to review those communications individually. [page 12]

The concerns were practical. As other members of Congress noted at the time, "There is no way that any of that any of those entities, like Prodigy, can take the responsibility [for all of the] information that is going to be coming in to them from all manner of sources.” [page 14]

While the volume of users [back when Section 230 was passed] was only in the millions, not the billions as today, it was evident to almost every user of the Web even then that no group of human beings would ever be able to keep pace with the growth of user-generated content on the Web. For the Internet to function to its potential, Internet platforms could not be expected to monitor content created by website users. [page 2]

Thus Section 230 established a new rule expressly designed to spare platforms from having to attempt this impossible task in order to survive:

The rule established in the bill [...] was crystal clear: the law will recognize that it would be unreasonable to require Internet platforms to monitor content created by website users. Correlatively, the law will impose full responsibility on the website users to comply with all laws, both civil and criminal, in connection with their user-generated content. [But i]t will not shift that responsibility to Internet platforms, because doing so would directly interfere with the essential functioning of the Internet. [page 5]

That concern for the essential functioning of the Internet also explains why Section 230 was not drawn narrowly. If Congress had only been interested in protecting platforms from liability for potentially defamatory speech (as was at issue in the Stratton Oakmont case) it could have written a law that only accomplished that end. But Section 230's language was purposefully more expansive. If it were not more expansive, while platforms would not have to monitor all the content it intermediated for defamation, they would still have to monitor it for everything else, and thus nothing would have been accomplished with this law:

The inevitable consequence of attaching platform liability to user-generated content is to force intermediaries to monitor everything posted on their sites. Congress understood that liability-driven monitoring would slow traffic on the Internet, discourage the development of Internet platforms based on third party content, and chill third-party speech as intermediaries attempt to avoid liability. Congress enacted Section 230 because the requirement to monitor and review user-generated content would degrade the vibrant online forum for speech and for e-commerce that Congress wished to embrace. [page 15]

Which returns to why Section 230 was intended to apply to transactional platforms. Congress didn't want to be selective about which types of platforms could benefit from liability protection. It wanted them all to:

[T]he very purpose of Section 230 was to obliterate any legal distinction between the CompuServe model (which lacked the e-commerce features of Prodigy and the then-emergent AOL) and more dynamically interactive platforms. … Congress intended to “promote the continued development of the Internet and other interactive computer services” and “preserve the vibrant and competitive free market” that the Internet had unleashed. Forcing web sites to a Compuserve or Craigslist model would be the antithesis of the congressional purpose to “encourage open, robust, and creative use of the internet” and the continued “development of e-commerce.” Instead, it will slow commerce on the Internet, increase costs for websites and consumers, and restrict the development of platform marketplaces. This is just what Congress hoped to avoid through Section 230. [page 23-24]

And it wanted them all to be protected everywhere because Congress also recognized that they needed to be protected everywhere in order to be protected at all:

A website […] is immediately and uninterruptedly exposed to billions of Internet users in every U.S. jurisdiction and around the planet. This makes Internet commerce uniquely vulnerable to regulatory burdens in thousands of jurisdictions. So too does the fact that the Internet is utterly indifferent to state borders. These characteristics of the Internet, Congress recognized, would subject this quintessentially interstate commerce to a confusing and burdensome patchwork of regulations by thousands of state, county, and municipal jurisdictions, unless federal policy remedied the situation. [page 27]

Congress anticipated that states and local authorities would be tempted to impose liability on platforms, and in doing so interfere with the operation of the Internet by forcing platforms to monitor after all and thus cripple their operation:

Other state, county, and local governments would no doubt find that fining websites for their users’ infractions is more convenient than fining each individual who violates local laws. Given the unlimited geographic range of the Internet, unbounded by state or local jurisdiction, the aggregate burden on an individual web platform would be multiplied exponentially. While one monitoring requirement in one city may seem a tractable compliance burden, myriad similar-but-not-identical regulations could easily damage or shut down Internet platforms. [page 25]

So, "[t]o ensure the quintessentially interstate commerce of the Internet would be governed by a uniform national policy" of sparing platforms the need to monitor, Congress deliberately foreclosed the ability of state and local authorities to interfere with that policy with Section 230's pre-emption provision. [page 10]. Without this provision, the statute would be useless:

Were every state and municipality free to adopt its own policy concerning when an Internet platform must assume duties in connection with content created by third party users, not only would compliance become oppressive, but the federal policy itself could quickly be undone. [page 13]

This pre-emption did not make the Internet a lawless place, however. Laws governing offline analogs to the services starting to flourish on the web would continue to apply; Section 230 simply prevented platforms from being held derivatively liable for user generated content that violated them. [page 9-10].

Notably, none of what Section 230 proposed was a controversial proposition:

When the bill was debated, no member from either the Republican or Democratic side could be found to speak against it. The debate time was therefore shared between Democratic and Republican supporters of the bill, a highly unusual procedure for significant legislation. [page 11]

It was popular because it advanced Congress's overall policy to foster the most beneficial content online, and the least detrimental.

Section 230 by its terms applies to legal responsibility of any type, whether under civil or criminal state statutes and municipal ordinances. But the fact that the legislation was included in the CDA, concerned with offenses including criminal pornography, is a measure of how serious Congress was about immunizing Internet platforms from state and local laws. Internet platforms were to be spared responsibility for monitoring third-party content even in these egregious cases.

A bipartisan supermajority of Congress did not support this policy because they wished to give online commerce an advantage over offline businesses. Rather, it is the inherent nature of Internet commerce that caused Congress to choose purposefully to make third parties and not Internet platforms responsible for compliance with laws generally applicable to those third parties. Platform liability for user-generated content would rob the technology of its vast interstate and indeed global capability, which Congress decided to “embrace” and “welcome” not only because of its commercial potential but also “the opportunity for education and political discourse that it offers for all of us.” [page 11-12]

As the brief explains elsewhere, Congress's legislative instincts appear to have been born out, and the Internet today is replete with valuable services and expression. [page 7-8]. Obviously not everything the Internet offers is necessarily beneficial, but the challenges the Internet's success pose don't negate the policy balance Congress struck. Section 230 has enabled those successes, and if we want its commercial and educational benefit to continue to accrue, we need to make sure that the statute's critical protection remains available to all who depend on it to realize that potential.

Filed Under: cda 230, chris cox, history, intermediary liability, ron wyden, section 230