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Big tech’s favorite legal shield is in danger

November 20, 2019, 11:30 AM UTC

“Section 230 should be abolished,” boomed Salesforce CEO Marc Benioff at a gathering of New York media in October. Many other people feel the same way. 

Not long ago, the 23-year-old law known as Section 230 was hailed as a pillar of the U.S. Internet economy for protecting any “interactive computer service” from being sued because of the bad behavior of its users. This legal shield meant online publishers like Reddit and Yahoo could host freewheeling discussions with few repercussions.

But in recent years, Section 230 has been blamed for enabling the worst aspects of the tech industry—be it fake news on Facebook, terrorist propaganda on Twitter, or websites that traffic in revenge porn. In August, the law gained further notoriety when Amazon invoked it to argue that it had no legal responsibility for dangerous and defective products sold on its site. 

Public pressure to do something is mounting. And these days, politicians from both parties are increasingly happy to oblige.

Democrats blame Section 230 for letting the likes of Facebook shrug while bullies and Russian provocateurs run riot on its services. Meanwhile, Republicans accuse tech firms of using the broad indemnity offered by the law to censor conservative news. 

“There’s a techlash happening, and a lot of anger at tech companies is being channeled into an attack on this particular law,” says ­Corynne McSherry, legal director of digital rights group Electronic Frontier Foundation.

Recently, Sen. Josh Hawley (R-Mo.) introduced a bill that would strip big tech companies of their Section 230 protection. Only sites found by the Federal Trade Commission to monitor content in a “politically neutral manner” would be able to keep their legal shield. 

The bill, which legal experts have suggested is unconstitutional, is stalled for now. But it’s notable that the idea of modifying or abolishing Section 230 has bipartisan support. 

Some commentators have described the Hawley bill as blowing up the business model of large Internet companies by forcing them to vet their users and advertisers in an unprecedented fashion. Most likely, these companies would have to spend big money on lawyers and content moderators. 

Google and Facebook declined to comment. Matt Schruers, a lawyer for CCIA, a tech trade group whose members include Google and Facebook, argues against weakening Section 230 and instead favors giving police more money to pursue criminals online.

In any case, legal experts warn that swinging a sledgehammer at the law is a bad idea. For one thing, the First Amendment—not 230—protects much of what people abhor online, including hate speech and fake news. 

Daphne Keller, an expert on Internet liability at Stanford University, says only a very small portion of the “bad” content on Facebook would be barred if Section 230 were rescinded. The First Amendment would shield the rest. 

Critics also argue that large tech companies would be mostly unscathed by Section 230’s re-peal because they can afford to hire more moderators and fight any lawsuits related to what their users post. Small web companies with tighter budgets, however, would feel the brunt. 

Some of those calling for abolishing Section 230 should also consider unintended consequences. Lawyers at Benioff’s Salesforce, for instance, recently invoked the law after victims sued his company because sex traffickers had used its software. Likewise, News Corp., controlled by Section 230 critic Rupert Murdoch, used the law to rebuff lawsuits against MySpace before News Corp. sold the website. 

Those critics, in other words, hate Section 230 except when it suits them. Salesforce and News Corp. didn’t respond to requests for comment.

The debate over Section 230 is complicated further by allegations of corporate skulduggery. Harold Feld, senior vice president of public interest group Public Knowledge, who has written extensively about Internet law, says some companies pushing to rescind Section 230 are doing so to undermine business rivals. 

“Everyone who’s had their knives out for Google or Facebook but are not directly impacted by Section 230 are pushing very hard to change it,” he says.  

Business software giant Oracle, for example, is a chief opponent of Section 230. But the company denies wanting to harm competitors and is instead, as Oracle executive vice president Ken Glueck put it, tired of tech companies “defending the indefensible” by claiming immunity from what their users post. 

Already, courts are narrowing the breadth of Section 230’s liability shield. A federal appeals court recently refused to extend the law’s protection to Amazon after a woman was blinded in one eye by a defective retractable dog leash that she bought from a third-party seller on its site. In the judges’ view, the law didn’t absolve Amazon’s responsibility for product safety under state regulations.

And last year, for the first time, Congress amended Section 230 by eliminating legal immunity for websites that knowingly let sexual predators use their platforms. But even this change proved controversial. Critics say it has endangered sex workers by driving them underground. If anything, the tweak shows that exceptions to the original law, which already holds companies accountable for intellectual property infringements and federal crimes, are possible. 

The bottom line is that tech companies are entering a new era. Old protections are no longer guaranteed. 

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