It seemed like a good idea at the time, which was 1996, the dawning of the internet age. Congress was persuaded by then-small providers of internet access to give them a free pass from responsibility.
The expressed goal was to encourage the rapid development of the internet, creating “true diversity of political discourse, unique opportunities for cultural development and myriad avenues for intellectual activity.” The mechanism for achieving it was creating the legal fiction that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
That is, an internet service provider could not be held legally responsible for passing along to millions of people even false, libelous, damaging, harassing, pornographic, threatening content created by a third party.
Titled Section 230 of the Communications Decency Act, it achieved its goal: within 10 years the world had millions of websites and giants such as You Tube, Facebook, Twitter, Google and Wikipedia.
But it also had operations such as Backpage.com, a sex-trafficking site that uses Section 230 to flaunt state and local laws on solicitation and sex trafficking.
“Publishing,” by any definition, includes the concept of distributing information for profit. But unlike all other businesses, including other publishers, internet providers are not legally responsible for what they sell. In their eyes — and, unrealistically, the eyes of Section 230 — their product is bits and bytes, zeros and ones, not the words and ideas and images those things form.
That’s about to change, to the consternation of Silicon Valley and many free speech absolutists.
After a couple of free-wheeling decades, some downsides of the internet provider exemption are emerging, including the double whammy wracking the giant of the genré, Facebook: its naïveté in facilitating (unknowingly?) Russian meddling in the 2016 U.S. election, and the revelation that “private” data on 50 million of its users was captured by a research company to help fuel the meddling.
Last week, the U.S. Senate passed a law specifically empowering state and local governments to go after sex trafficking sites such as Backpage.com and allowing victims of sex trafficking to sue such sites for damages. It’s the first crack in the absolute shield provided by Section 230.
The crack alarms the billionaire lords of the internet who curate their sites’ content, solicit contributions and reserve the right to exclude material and people, but only at a level and under terms they themselves determine. With millions of contributors generating immense amounts of data, they claim that being held responsible for all of that would be too large a task. In other words, their immense success should relieve them of responsibility.
Congress’ action should concern anyone who values the First Amendment’s protection of free speech. But our Constitution is a blueprint for a free society, not a blueprint for individual existence. Every right comes with conditions and must be weighed, case by case, against other equally important rights. None is absolute.
We have a judicial system charged with the thorny business of sorting out collisions among competing rights and settling disagreements over public responsibilities. The new, narrow limitation on Section 230’s breadth will be tested in that legal system, where earlier attempts to define its reach are working their way up.
The stakes are substantial on many levels.
Davis Merritt, Wichita journalist and author, can be reached at firstname.lastname@example.org.