Last week saw the first major change to internet-immunity-clause, Section 230, in years. The U.S. Senate voted to allow victims of sex trafficking to legally pursue websites that contributed to their victimization.

The amendment to section 230 is a positive move for many. However, plenty of controversy surrounds the decision.

As always with internet legislation, critics of the amendment are worried about vague language allowing for additional abuses of online free speech.

Of course, section 230 is no stranger to the dark corners of the Internet. In many cases, the law has been used to protect bad actors. Now that legislators attempt to peel back these protections, the internet community must ensure that this well-intended move doesn’t allow for abuses against protected free speech.

To get you up to speed, we’ll start by tracing the beginnings of this law. Then, we’ll take a look at the recent changes. Finally, we’ll consider the possible ramifications of the new law.

What is Section 230?

For those in the U.S., this landmark law has been responsible for shaping life online as you know it.

Section 230 is found in the Communication Decency Act of 1996.

Simply put, it gives websites broad immunity against being sued for anything posted by its users.

The opinions and factual assertions in the video below belong to the creator of the content and are not necessarily supported by Edgy Labs. That said, we do feel Timcast does a good job of presenting the main arguments of critics against changes to Section 230.

Unlike newspapers, which are held accountable for anything that appears in their articles, sites are rarely held accountable for their user’s actions. Even if sites moderate posts or set specific standards, (with some exceptions) this statute remains true.

Often described as a core pillar of internet freedom, it is argued that without section 230, we wouldn’t have YouTube, Reddit, Facebook or Tripadvisor. This liability shield enables sites to allow anyone to post opinions and write reviews online. Without it, the Internet would be a very different place.

So, section 230 seems to be a tool for protecting freedom of expression and promoting online innovation. Then why did it need to be changed?

How did Section 230 Come About?

A 1995 ruling inspired Christopher Cox, a lawmaker in Republican U.S. House of Representative leadership, to take action. After Cox became aware of a particular case, he ended up changing our lives forever.

An anonymous user had accused an investment bank (one you may know from the Wolf of Wall Street) of fraud on an online news bulletin board. The bankers retorted by attempting to take legal action against the user. This, of course, was impossible due to the user’s anonymity.

Investment bank Stratton Oakmont’s crimes inspired ‘The Wolf of Wall Street’ and Section 230.

This lead them to sue Prodigy, the online provider of the bulletin board, instead. Prodigy fought back with the argument that they were not the publisher, but merely a platform. The site held that, just as a library cannot be held accountable for what’s inside its books, they were not liable for the words of their users.

In its decision, the court ruled against Prodigy. As the platform also moderated posts, it was treated like a publisher. 

This caught the attention of Cox who feared that punishing companies for moderating their platforms could infringe on the development of the Internet.

Cox returned to Congress with a plan to collaborate with Oregon Democrat Ron Wyden. Wyden was an avid supporter of the growth of the Internet and was easily convinced to get on board.

Cox went on to co-author section 230. Cox stated that the intent of this law was to help clean up the Internet.

However, since then the law has taken a detour away from the original intent. Section 230 has proved to facilitate a number of negative actions online.

Who was Section 230 Really Protecting?

The purpose of Section 230 has been manipulated to protect sites that host revenge porn, post extremely disturbing videos, and violent death threats. The law has even been connected to the scandal surrounding Russia’s alleged manipulation of the U.S. election.

One case in particular which focused on an online sex trafficking ring spurred lawmakers on to amend Section 230.

In one specific case, followed in the documentary “I am Jane Doe”, a 15-year-old went missing in Seattle. A few months later, the girl was found in explicit sex ads online. One of these sites, Backpage.com, featured numerous ads for forced child prostitution.

These victims and their families took case after case against Backpage.com. But Section 230 shielded the website from liability and they lost every time.

Kubiiki Pride and her daughter who survived online sex trafficking via Backpage.com. Photo: Courtesy of 50 Eggs Films

Eventually, evidence that proved the website’s active involvement in the sex ads piled up. This meant that the site was indeed a publisher and therefore accountable for its content. The people behind Backpage.com now face a federal grand jury in Arizona.

The new legislation motivated by the crimes committed by Backpage.com follows the goal of inhibiting online sex trafficking. It allows more state and civil lawsuits to be taken against websites that are knowingly assisting, supporting, or facilitating such crimes.

Will Changes to Section 230 Make Things Worse?

There has been some backlash against the changes, particularly on behalf of groups supporting freedom of speech online. These sites include Engine and the Center for Democracy and Technology. Cox and Wyden have also opposed the legislation to amend section 230.

The bill is due to create an exception to Section 230 so that federal, state, criminal, and civil law can be used to prosecute sites related to or knowingly involved in sex trafficking.

Eric Goldman, a critic of these changes, testified against the bill before the Senate. The free speech scholar and law professor from Santa Clara University explained that the changes would cause a “moderator’s dilemma”.

The vague “knowing” standard would force tech companies to choose between two extreme options. Goldman explained that to avoid liability, they would have to either resort to extreme censorship or stop all moderation in an effort to avoid knowing about any problematic content on their platform.

Internet Censorship and section 230
Image courtesy of Chappatte at the International Herald Tribune

The inclusion of the word “knowingly” is ambiguous and therefore potentially dangerous. The U.S. Department of Justice has even expressed its concern over the use of the term. The change could be a step in the right direction, but also 22 years worth of steps backward.

Opponents to the bill hold that the change could lead websites to resort to more censorship or remain completely ignorant of what happens on their websites to avoid liability.

They also argue that it will enhance crimes by allowing them to be carried out beyond the surface of the web.

Strange Timing For Consensus Amongst Tech Giants

Interestingly, tech giants that would usually be on the side of the internet activist organizations have taken a stand against them.

Representatives from Facebook, Google, and Twitter have all shown their support for amending Section 230. According to The Internet Association, a trade group representing such tech companies has explained that the consensus between such groups has been in favor of bringing justice to victims of sex trafficking. It seems the tech community is finally showing some sort of ethical concern…Or does it?

Wyden has pointed out that the support for the ruling on behalf of tech giants correlates with the intense scrutiny they are under. The support also comes from the same platforms that have recently received negative attention for being manipulated by Russian operatives during the 2016 elections and revelations of privacy breaches.

It is also questionable that Google was seen to heavily lobby against earlier versions of the bill until muting its criticism in recent weeks. The tech company has refused to comment on these actions.

Wyden also alluded to the fact that these companies may have other motivations behind their stances. In such a politically charged and delicate position, the last thing companies like Facebook want to be seen doing is supporting sex trafficking.

A Question of Responsibility

Despite the controversy and opposing opinions surrounding the 230 debate, the change is set to go ahead. The Senate approved the legislation with a 97-to-2 vote.

Rebecca Tushnet, professor of law at Georgetown University, has emphasized that section 230 was allowing companies “power without responsibility”.

On the other end of the spectrum, Wyden has stated that the key to section 230 was making sure that companies were responsible for policing their platforms and receiving protection in return.

Either way, the disruption of this dynamic means that internet companies must face many questions that lie at the core of modern internet use.

How responsible should online platforms be for the behavior and treatment of their users?

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