New Paper Explains Why Technologists Should Rally Behind Section 230
At the request of James Grimmelmann, and with his editorial support, I wrote an essay for the Communications of the ACM called “Internet Immunity and the Freedom to Code.” The abstract:
The Internet’s freedom to code is in jeopardy. In 1996, Congress enacted 47 U.S.C. § 230, which says Internet services aren’t liable for third-party content in many cases. In practice, for over two decades, Section 230 has legally immunized coders’ decisions about how to gather, organize, and publish third party content.
Section 230 has become a political target by all sides, but reforming it will impair coding freedom. This essay explains how Section 230 came into existence, the effects it has had, and why technologists should rally behind it to preserve their ability to build the next generation of Internet services.
Also, although it’s not a 230 paper, I call your attention to my essay on the UK Online Harms White Paper. This is a “sanitized” version of the comments I submitted to the UK regulators about their proposals to impose a “duty of care” on UGC services. As the essay makes abundantly clear, I am not a fan.
Other Recent Papers on Section 230
* An Overview of the United States’ Section 230 Internet Immunity (2019). This is the basic primer you’ve always wanted. If you’re not an expert in Section 230 and want to read only one piece to get the lay of the land, this is it.
* Why Section 230 Is Better Than the First Amendment (2019). This is the next piece to read after the primer. Once you understand the law, you need to understand how its substantive and procedural benefits make it so successful. This piece explains Section 230’s complicated, counterintuitive, and underappreciated “hydraulics.”
* The Complicated Story of FOSTA and Section 230 (2019). A primer that explains FOSTA, how it came about, and what it does.
* The Ten Most Important Section 230 Rulings (2017). After 2 years, I don’t think I’d change this list at all, except possibly for substituting in the HomeAway v. Santa Monica Ninth Circuit ruling for the Airbnb v. San Francisco district court ruling. They reached the same result, but the HomeAway opinion is binding precedent throughout the Ninth Circuit. The Herrick v. Grindr and Daniel v. Armslist cases are both important, but they are largely extensions of the Doe v. Backpage ruling.
* Balancing Section 230 and Anti-Sex Trafficking Initiatives (2017). My written testimony from the House Commerce Committee FOSTA hearing.
* Sex Trafficking Exceptions to Section 230 (2017). My written testimony from the Senate Commerce Committee SESTA hearing.
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity (2013). How relevant is this today? The state AGs recently sent a THIRD letter reiterating their 2013 request to exclude state crimes from 230.
* Online User Account Termination and 47 U.S.C. §230(c)(2) (2012). A topic that has heated up a lot in the past 7 years, but Section 230(c)(1) has stolen the spotlight.
* Copyright’s Memory Hole (2019). The story of how censorious plaintiffs pile into Section 230’s IP exception, a story that will be repeated if/when Congress expands Section 230’s exceptions.
* Of Course the First Amendment Protects Google and Facebook (and It’s Not a Close Question) (2018). The title says it all.
* Who Cyber-Attacked Ken Zeran, and Why? (2017). Unraveling the greatest whodunit in Internet Law history.
* The Defend Trade Secrets Act Isn’t an ‘Intellectual Property’ Law (2017). Congress made the Defend Trade Secrets Act subject to Section 230 in a cumbersome and counter-intuitive way.