Americans Would Probably Love Section 230—If They Understood It (Cross-Post)

[Eric’s intro: before the Trump anti-Section 230 EO, the Knight Foundation and Gallup pollsters surveyed consumers on various online topics, including Section 230. I encourage you to check it out–lots of data to digest and debate. As part of preparing the report, the Knight Foundation asked several grant recipients (which includes me) to provide some commentary about the survey findings. This post contains my submission. I don’t normally prefer to do tendentious word parsing, but that endeavor helped me explain some key broader concepts about Section 230.]

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Section 230 says that websites aren’t liable for third-party content, subject to some key limits. It has been the law of the (U.S.) Internet for a quarter-century, but most consumers have never heard of it. As a result, consumers don’t appreciate how Section 230 facilitates the services they value the most. Consumers take for granted that they enjoy: free email services; free access to the largest and most powerful searchable database ever created; free videoconferencing services; free access to a comprehensive and constantly updated encyclopedia; millions of hours of free video content on services like YouTube; and free publishing tools that can reach billions of people. Consumers have no awareness of how these services depend critically on Section 230.

Due to their lack of background knowledge, it’s tricky to survey consumers about Section 230. To obtain informed feedback, the survey questions need to educate consumers about the law, which introduces potential bias. As the Gallup “Free Expression Online” survey acknowledges, the information it provided respondents about Section 230 “could make a difference in how people answer.”

Let’s consider how that may have happened. One survey question asked respondents if Section 230 has done more harm than good. To educate survey respondents, the question characterized Section 230’s harm as:

Section 230 “has not made the companies accountable for illegal content on their sites and apps”

The question characterized Section 230’s benefit as:

Section 230 “has allowed the internet to grow as a place people can communicate and say what they think”

This framing skewed the characterization of Section 230’s harms and benefits. Regarding the harms:

• The question implies Section 230 creates a lack of accountability, which prompts respondents to prefer more accountability. Furthermore, “accountability” can come from a range of sources: civil lawsuits, government regulation, criminal prosecutions, marketplace discipline, public opprobrium, and more. Which, if any, of these options were on respondents’ minds?
• The question doesn’t distinguish between first-party and third-party “content.” (The introductory paragraph referenced this distinction, but the question itself did not). Thus, it implies that Section 230 reduces companies’ accountability for their own content.
• It’s confusing to characterize content as “illegal.” Few categories of content are always “illegal” (child pornography is the leading, and perhaps only, example). Other content categories aren’t inherently illegal; the legality can depend on the speaker’s identity or the factual context surrounding its publication. Also, respondents may conflate illegal content with “lawful but awful” content, i.e., content that grossly violates social norms but is nevertheless legal. How did respondents interpret the term “illegal content”?
• The question incorrectly implies that Section 230 enables all “illegal content.” Section 230 has statutory exclusions—for intellectual property, federal criminal, and other violations—that permit “accountability” for illegal third party content. Thus, the question mischaracterizes Section 230’s effects.

While the question overstates Section 230’s harms, it understates Section 230’s benefits:

• Growth of the Internet isn’t inherently a benefit. Instead, because the question’s harm statement prompted respondents to consider Section 230’s facilitation of “illegal” content, respondents may have considered “growth” of such content unfavorably.
• The question focuses on free speech in the abstract, not as a personal benefit. Respondents may not worry if Section 230 protects their free speech because they optimistically assume it’s not in jeopardy—even though, without Section 230, it probably is.
• The question highlights Section 230’s free speech benefit, but Section 230 has equally important benefits for the economy, employment, innovation, competition, our country’s global position, and more. Featuring those other benefits might have been more impactful on respondents.

Because of the question’s strong statement of harms and weak statement of benefits, it’s perhaps not surprising that a small majority (54%) recognized the harms over the benefits.

Nevertheless, in a separate question, respondents decisively endorsed Section 230. 66% of respondents favored keeping Section 230 so that people cannot sue Internet companies for content posted by others on their sites, while 31% preferred to change Section 230 so that Internet companies can be held liable for such content.

How to reconcile these two survey results? The question framing surely played a role. The first question provided imprecise summaries of harms and benefits, while the second question succinctly presents the key underlying policy principle—who should bear responsibility for bad content online? Because the second question provides cleaner insights into consumers’ priorities, it might better gauge true consumer support for Section 230.

Even so, any binary survey questions about Section 230 are likely to produce unsatisfying results. Like many legal policies, Section 230 involves difficult tradeoffs between important social values. It would be more enlightening to understand how consumers prioritize those tradeoffs. Different survey instruments, such as conjoint analysis of various tradeoff considerations, might better expose those insights.

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[A final thought: there is a widening disconnect between most Americans, who love the Internet and especially UGC services, and politicians, who are increasingly determined to burn it all down. In particular, every politician who treats Section 230 as a political football, or as leverage over Google and Facebook, is telling their constituents that they don’t care about the Internet you know and love. Never assume that your “public servants” love the Internet as much as you do.

Speaker Nancy Pelosi famously described Section 230 as a “gift.” The context in which she said it was wrong, but Section 230 is indeed a gift–a quarter-century long gift to the American people who, many times a day, derive immense benefit from Section 230-enabled Internet services. Yet, incredibly, so many Congressmembers and government regulators are working hard right now to take that gift back from us.]