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For years now, legislators at both the state and federal level have been calling for reform to the “safe harbor” provisions of Section 230 of the Communications Decency Act of 1996, a provision which has long protected providers (and to an extent, users) of “interactive computer services” from liability stemming from the actions of third parties.
There are several proposals floating around the U.S. House of Representatives and the U.S. Senate currently, some of which are far broader than others in terms of their impact on Section 230 safe harbor and the entities that rely on it. The most extreme of these proposals is one that would simply eliminate Section 230 altogether after December 31, 2026.
The need for reforms to Section 230, according to the legislators pushing for such, is rooted in the belief that changes and advances in communications technology have outpaced the law – and have turned Section 230 into too large a shield, in effect, for the technology companies it protects.
“Changes in technology have created new opportunities for criminals to harass, exploit, intimidate and harm American children,” said Senator Chuck Grassley (R-Iowa) in a statement about the Section 230 reform bills he sponsors or supports. “These horrific crimes – often committed by violent online groups who take advantage of our nation’s outdated laws – have gone unchecked for far too long.”
Senator Dick Durbin (D-Ill.) has joined Grassley in his effort to amend Section 230—and echoed Grassley’s sentiments in the same statement.
“Because of modern technology, child predators from anywhere in the world can target American kids online,” Grassley said. “As technology has evolved, so have online child exploiters. Today, offenders are engaging in sadistic online exploitation and coercing kids to take their own lives. Big Tech continues to fail our most vulnerable because they refuse to incorporate safety-by-design measures into their platforms or make meaningful efforts to detect the increasingly violent and depraved sexual exploitation of children on their services.”
The most extreme Section 230 reform idea being bandied about in Congress right now is the “Sunset To Reform Section 230 Act,” a very short bill that would simply append the following text to the law: “(g) Sunset.—This section shall have no force or effect after December 31, 2026.” The effect of this Act, should it pass, seems to be a complete repeal of Section 230, as opposed to a reform of the law.
While it’s perfectly understandable for people to want to do more to protect children who use the internet and other communications technologies and platforms, eliminating Section 230 would have far-reaching implications, some of which I get the feeling Congress has not fully considered.
Publication of user-generated content (UGC) is not limited to the likes of adult tube sites or major social media platforms. It’s one thing to approach Section 230 reform ‘surgically,’ by limiting the scope of its protections, or requiring more of the largest and best-funded platforms in terms of policing the content uploaded by their users, but to repeal Section 230 entirely would create a flood of lawsuits, potentially directed at any site or platform that enables users to publish content.
It’s not hard for one to imagine the chaos that could ensue, even for legislators themselves. If a representative or senator has a website of their own that allows readers and users to post comments, does the legislator in question want to face liability for anything untoward or illicit those users might post? This is the sort of hypothetical I’m not sure the likes of Grassley and Durbin have fully taken on board.
Reasonable people can disagree on whether the scope of Section 230 immunity, particularly as it has been interpreted by the courts, is too broad. But when it comes to reforming the safe harbor, outright elimination of Section 230 would create far more problems than it would solve.
