20 Years Ago Today: The Most Important Law On The Internet Was Signed, Almost By Accident

Legal Issues

from the give-thanks dept

The internet as we know it would be a very, very different place if 20 years ago today, President Clinton hadn’t signed the Communications Decency Act. To be fair, nearly all of the CDA was a horrible mess that was actually a terrible idea for the internet. A key part of the bill was about “cleaning up” pornography on the internet. However, to “balance” that out, the bill included Section 230 — added by two Congressmen in the House of Representatives: Ron Wyden and Chris Cox. They had pushed this clause as a separate bill, the Internet Freedom and Family Empowerment Act, but it didn’t get enough traction. It was only when they attached it to the Communications Decency Act (which had passed the Senate without it), that it was able to move forward. And thus, 20 years ago today, when President Clinton signed the CDA, most of the attention was on the “stopping indecency” part, and very little on the “throw in” of Section 230. And yet, there’s a strong argument that Section 230 may be one of the most important laws — perhaps the most important — passed in the past few decades.

As you hopefully already know, a year later, in Reno v. ACLU, the Supreme Court tossed out basically all of the CDA as unconstitutional. The only tidbit of the law that remained valid? You guessed it: Section 230. And, of course, it became the key law in enabling the internet to grow the way it did. It’s been said in the past, fairly accurately, that no law contributed more to the growth of the internet than CDA 230, and that’s because of a fairly simple and straightforward principle. CDA 230 simply said that an internet service is not liable for actions of its users. This meant that new websites and internet services didn’t need to carefully monitor and track everything that every user did to make sure it wasn’t violating a law. That meant the legal risks and liability for creating services that allowed the public to create all kinds of content went way down.

Without a robust Section 230, it’s difficult to see many of the most popular platforms today existing. It’s no surprise that soon after CDA 230 we saw the rise of blogging and social media — and almost always coming from American companies. Both would be significantly more difficult without Section 230’s protections. In fact, much of the push for Section 230 came in response to a horrible court case, Stratton Oakmont v. Prodigy, in which an internet bulletin board commenter attacked financial firm Stratton Oakmont, and its president, for apparently being involved in criminal and fraudulent activity. Stratton Oakmont — now perhaps well known as the firm portrayed as doing all sorts of criminal and fraudulent things in the movie The Wolf of Wall Street — sued Prodigy for the comment and won. The liability from such a ruling scared numerous online platforms, in particular because a key part of the ruling was that because Prodigy posted “guidelines” and removed posts with offensive language, it suddenly became a “publisher” of the content, and was liable for that content.

A key, and often overlooked, part of Section 230, is that it actually does encourage sites to take proactive measures to filter content, by noting that any kind of moderation or guidelines absolutely does not remove the protections of Section 230. As such, sites get to decide for themselves whether or not to moderate their content in any way, without facing the legal risk of suddenly being declared the publisher. Other countries have no such protections, leading to some dangerous rulings, and creating something akin to a “right to be forgotten” in some instances.

There have been numerous cases testing Section 230 over the years — and the law has remained strong and in place — though it is still being challenged to this day. The biggest and most important case was Zeran v. AOL, the first case testing Section 230, in which the court found that Section 230 was a powerful tool that kept sites from being held responsible for content posted by users.

Section 230 has been powerful in so many ways. It has both enabled and protected free speech online by letting companies set up platforms where people can speak openly. Without it, the internet would be much more limited as a platform for communicating to the public. As the 4th Circuit noted in its ruling in the Zeran case:

The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted.

It has protected privacy, by making it clear that there was no duty for websites to monitor and track their users, to avoid any kind of liability. It has created incentives to create tremendous economic value, by making it clear that companies could be formed to enable public communications, such as blogging, forums and social media — without being sued into bankruptcy over misuse. And it has actually enabled better moderation of platforms in not making them give up protections, if they choose how to moderate certain content.

It is difficult to express just how important Section 230 has been over the past 20 years other than to say that, without it, it’s unlikely that you would be able to comment on Techdirt today. It’s also unlikely that you’d have tools like Twitter or Facebook or Yelp or AirBnb. Any service that relies on public input owes a huge debt to Section 230, and it’s quite incredible that it was basically included as an “add-on” that very few noticed when it was signed.

So, as we’re hanging out here on the internet today, in a place that is alive only because of Section 230, please thank (now Senator) Ron Wyden in particular for his role in creating Section 230, and pay attention, because there are very powerful forces working right now to undermine Section 230 entirely. It’s been a key driver of free expression and economic growth for the past 20 years, and it would be a shame to undermine that now.

Filed Under: cda, cda 230, communications decency act, free speech, immunity, innovation, internet, liability, ron wyden, safe harbors