Is this the end of Section 230, the law that protects tech companies from liability for third-party content they host? Will the sky fall without 230?
Recently, the House Energy and Commerce Committee proposed a bipartisan bill It would repeal Section 230 at the end of 2025. “Our bill gives Big Tech a choice: work with Congress to ensure the internet remains a safe and sane place forever, or lose Section 230 protections entirely.”
While 230 “experts” have a lot to say on this subject, as engineers we prefer to start with real-world examples rather than abstract topics that sound good on Twitter but are useless in real life. .
Let’s start with how Section 230 has affected victims of child pornography. doo vs twitter (ND Cal.2021).
In what would be a nightmare for parents, the victims encountered their attacker who was pretending to be a 16-year-old girl on Snapchat. The perpetrator instigated the victim to send nude photos, and then she coerced the victim to send more explicit content. The perpetrator then posted this child pornography on her Twitter. The victims learned about it from their classmates.
Despite numerous reports from multiple users, Twitter did nothing — even after requesting and receiving a copy of one victim’s ID. It was only when federal agents intervened that they changed their tune.
The victims then filed a lawsuit alleging that Twitter was violating federal child pornography laws. Twitter did not dispute these allegations. They simply argued that Section 230 barred victims’ legal claims. the court agreed.
But when Congress tried to fix that problem with EARN-IT, a bill that carved out federal and state child pornography laws from 230 bills, 230 “experts” responded with a five-alarm alarm. and resorted to dirty strategies such as: It was a tactic that rivaled the nastiness of the debate over net neutrality.
Groups like the Taxpayer Protection Alliance are spreading the four Pinocchio lies about EARN-IT, including: amazing: “If platforms choose not to encrypt their data, the bill would require them to track and identify all users for age verification purposes.” This claim is too far from the truth. The only appropriate response is, “Everyone in this room is stupider now.” utter abusive language From “Billy Madison”.
And may God have mercy on the souls of the 230 “experts” who think it wise to resort to dirty tactics on legislation to stop child pornography. Even big tech companies would never directly engage in such tactics to damage their brand. Instead, they do it indirectly through industry associations such as NetChoice. If it feels like Congress is just throwing its hands up in the air with this proposal until sunset on the 230th, it’s easy to see why.
So what happens if Section 230 disappears, not just in child pornography laws, but in all laws? Will the sky fall? do not have. Not at all. Even without the 230 shield. need a sword: A legitimate reason for action. If a technology company cannot prove that it violated the law, the lawsuit is void on arrival, whether or not it is filed.
In fact, many frivolous lawsuits that are quickly dismissed under Section 230 would be dismissed quickly even without Section 230 because they certainly do not allege any violation of law. In a federal civil action, if a plaintiff fails to state a claim, the defendant may prevail on an early motion to dismiss under Rule 12(b)(6). This is usually the same stage at which a case is dismissed under Section 230.
The argument that without 230 there would be more censorship of conservatives is also absurd. There are no laws that make “disinformation” or “hate speech” illegal, and such laws would violate the First Amendment in any case. However, there are laws for real issues like child pornography. Realistically, without 230; further alleviate real-world problems There will also be less censorship of fake issues.
(The 230 “experts” will be quick to point out here that there is a federal criminal law exception to No. 230. But what they often omit is that this exception does not apply to law enforcement It only applies to criminal prosecutions. doo vs twitter As you already know, this exception does not apply to civil actions for the same conduct. )
Let’s also dispel the myth that Section 230 is the “First Amendment of the Internet.” Even without Section 230, the actual First Amendment still applies. As a corollary, even without Section 230, technology companies cannot be held strictly liable for all third-party content they host. According to Smith v. California (1959), strict liability is already unconstitutional.
But if we were to repeal and replace 230, what should we replace it with? After all, conservatives are well known for using the phrase “repeal and replace” without understanding the “replace” part. I am. Two themes recur frequently in technology policy. The first common sense theme can be summed up in one word. “If it’s illegal offline, it should be illegal online.”
The second theme is a unified national policy. Simply put, the difference between your local coffee shop and a tech startup is that data often crosses state lines, but coffee doesn’t. As a result, technology companies large and small are bound by a patchwork of state laws that can impose significant regulatory burdens. If a startup checks out of California and relocates to Florida, in a scenario similar to the song “Hotel California,” it may not be able to leave California law.
These two themes present simple solutions. Section 230 should not apply to any federal law. This compromise would prevent tech companies from drowning in an endless sea of contradictory state laws, while also ensuring that anything that’s illegal offline at the federal level is also illegal online. (Section 230 and state laws are a more sensitive topic.)
In a world where the voices of citizens are often silenced by the woke trust and safety departments of technology companies, things can only change if those companies are governed by laws enacted by democratic institutions that give voice to all citizens. will get better.
Mike Wacker is a software engineer and technologist who previously served as a Congressional Technology Fellow. Follow @m_wacker on X.com.
The views and opinions expressed in this editorial are those of the author and do not necessarily reflect the official position of the Daily Caller.
