How Section 230 Makes My Life Better (A Celebration of Its 25 Year Anniversary)
[Note: tomorrow I’m on a panel about Section 230 with David Greene (EFF) and Cathy Gellis. It’s not too late to register!]
Remembering Section 230’s Enactment
I started practicing Internet law in Fall 1994. In 1995, I advised several small user-generated content (UGC) services about their content moderation approaches and liability. At the time, the leading non-copyright UGC liability case was Cubby v. CompuServe, though it was not clear how to operationalize its rule. The best guess was for UGC services to do as little content moderation as possible so they could claim they didn’t “know or should have known” of any legal problem. When the Stratton Oakmont v. Prodigy ruling came out, it seemed to confirm that minimal content moderation was the best practice from a legal risk standpoint. As we all know now, this wasn’t good advice for the long-term.
When the Telecommunications Act of 1996 passed on February 8, 1996, the criminal liability in the Communications Decency Act drew most of the attention. You may recall that part inspired John Perry Barlow’s (in)famous A Declaration of the Independence of Cyberspace. While I was sympathetic to Barlow’s point of view, and I shared his anger at Congress’ censorial choice, he didn’t speak for me then or now. It’s always been clear that the government would inevitably prevail in its power struggle with the Internet–a main reason why the Web 2.0 era of UGC is ending, to be replaced by a Web 3.0 era dominated by walled gardens of professionally produced content.
Due to the CDA, my clients were petrified of prosecution. One client, for example, spent all night zapping every account with porn.
In contrast to the CDA, 47 USC 230 got comparatively little discussion. I don’t think most Internet lawyers appreciated the implications. I don’t recall any celebrations in Silicon Valley or any champagne bottles popping in my circles. We didn’t immediately have CLE sessions about Section 230 or law firm e-blasts touting the change.
Initially, I wasn’t really sure what to make of Section 230 myself. For example, I taught my first Internet Law course starting January 1996 (at USF Law, in a class entitled Cyberspace Law). I started the semester with secondary liability principles (a sequencing mistake I corrected the next year), and the legal principles were a jumbled mess without Section 230. I had completed the topic before Section 230 was enacted and didn’t go back to cover Section 230. Here’s what I wrote in my sample answer (in May 1996):
although we did not discuss this in class, the CDA may offer some hope here–Section 230(c)(1) says “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The legislative history (such that it is) indicates that this provision was inserted to overturn the result in Stratton Oakmont. Until I get more definitive analysis, I am not prepared to rely on this provision globally, but all of you should consider this language if the issue arises.
Section 230’s potential scope started emerging from the Zeran v. AOL district court ruling in March 1997–a decisive AOL win. Here’s what I wrote in my May 1997 final exam sample answer (back when we still used the term sysop):
As for the sysop’s liability, we could assert that the sysop is the publisher or speaker of the messages posted and therefore should be liable for their contents. We can support this argument by their implicit editing of the content by leaving one of the messages up (which perhaps they “selected” to stay) or by republishing it after notice from Saber. Of course, it is likely that any such argument will be preempted by the CDA Section 509 and Zeran. However, there are a few outstanding issues here:
* is a website an I.C.S.?
* will Section 509 preempt liability for all of the types of harm caused by 98765.4321? We know it preempts defamation and other “publisher or speaker” torts. Are all of the torts committed by 98765.4321 such torts?
* Will other courts follow Zeran? Or will other courts follow footnote 20 of Zeran and say that the sysop’s actions made them a “provider”? [modern note: I was referring to ICP, not ICS provider]
By the time the 4th Circuit’s opinion came out in November 1997, there was no doubt that Section 230 definitively resolved many liability questions. So Section 230 wasn’t like a light switch that flipped the industry; it was more of a slow burn that took about two years to fully emerge.
How Section 230 Makes My Life Better
Most of us take Section 230’s benefits for granted and assume they will continue forever, so today I’m going celebrate a few of the many “little” ways that Section 230 makes my life better that I don’t take for granted. (I’m sidestepping the fact that, in my case, the Internet dominates every aspect of my professional and personal life; and I’m focusing only on things that exist only because of Section 230, not all of the many ways that the Internet generally improves my life). My list:
- I love that my wife can find and connect online with other people across the globe who share her rare lung cancer mutation, ROS1. I estimate about 6,000 Americans are diagnosed with the ROS1 mutation every year–such a small number that it’s unlikely that any geographic region will have more than a handful of ROS1ders. That makes the formation of geography-dependent ROS1 communities functionally impossible. (The small population size also means that the mainstream media rarely talks about ROS1 specifically). But online, the patient community can accomplish amazing things, like the creation of a global clinical trial that has dramatically expanded the amount of ROS1 biopsied material available to researchers.
- I love being able to hear good news about my friends and their families. In the old days, such news often would wait until annual holiday cards, and that made it harder for us to celebrate each other.
- I love how social media lets us maintain friendships and professional connections with people from prior jobs or schools. In the past, those connections would fade once the physical proximity ended and we moved into new circles. Now, we can maintain life-long connections through ongoing social media engagement.
- I love using GIFs and memes to express myself. Especially ones referencing Star Wars and Star Trek.
- I love being able to self-publish my Internet Law and Advertising Law casebooks. This allows me to charge a price that saves students a lot of money; students can get the books in the format they prefer and on instant demand; and I can update the books more frequently than would be justified if dead trees were involved.
- I love learning tips and tricks from my friend network online. As one example, it’s great to get travel recommendations from my network. In the past, I’d get recommendations would come by guessing which folks in my then-current physically proximate social network might have good insights. Now, I can ask my social media network and benefit from the expertise that I never realized they had.
- I love getting crowdsourced trail reports from services like AllTrails or PeakBagger so that I can decide how best to spend my hiking time, including whether a hike is suitable for me and what current trail conditions might be.
- I love being able to get answers from online community-edited wikis, especially Wikipedia. I access Wikipedia many times a day. For example, I can find facts-and-figures about songs, albums, and bands that help me build my Spotify playlists.
- More generally, I love that I don’t have to squirrel away physical copies of information “just in case” I might need them in the future, and then build a proprietary organizational taxonomy to help me remember where I stashed the gems. Instead, I can find information I need when I need it.
- I love using RSS and an RSS reader (I use Feedly). It lets me stay current using 150+ news sources, far more than I could possibly manage in the offline world.
- I love watching cat videos on YouTube, especially Maru and Grumpy Cat. (Do I need to say any more about this?)
- I love using consumer reviews to make better shopping decisions. They help me navigate niches with many competing items that make it hard to understand the differences between products. Professionally-written reviews also help, but consumer reviews provide first-hand in-the-field perspectives across multiple use cases. This is especially true for credence and experience goods, where the professional reviewers might have biases I don’t share, or might not use a product long enough to validate the marketing claims.
- As a particular application of consumer reviews, I love how the Happy Cow website organizes all of the vegetarian and vegan restaurants in the world and provides me with reviews of those places BY VEGETARIANS AND VEGANS. Most professionally written reviews overlook the entire genre of vegetarian and vegan restaurants; and the reviewer usually isn’t vegetarian or vegan, so their review starts off “Well, as a meat-eater, I thought…” I’d prefer to hear from reviewers who understand life as a vegetarian/vegan instead of condescending interlopers.
- I love how peer-to-peer online marketplaces make it possible for us to find all kinds of specialty items pretty much on demand. As a perhaps trivial example, I’ve acquired literally 400+ slinky-related items on eBay over the past 23 years, many of which I never could have found in physical space. I have RSS alerts set up on eBay to notify me of new items uploaded from around the globe, so it costs me no time or money to conduct global searches for my highly specialized interest.
- I love that I could teach my Internet Law course in Fall 2020 using Zoom and Canvas, which helped keep me and my students safe from COVID transmission.
I recognize that some of my points reflect my life privileges; though I believe virtually everyone has their own idiosyncratic list of important personal benefits and joys they derive from Section 230. I offer this list to help explain why I get so angry when politicians treat Section 230 like an expendable political football. What they are really saying is that they are OK subtracting these joys, big and small, from my life. That would be terrible.
More About Section 230
Some of my favorite Section 230 papers from my oeuvre:
- An Overview of the United States’ Section 230 Internet Immunity
- Why Section 230 Is Better Than the First Amendment
- Ebook on Zeran v. AOL
- Liability for User-Generated Content Online: Principles for Lawmakers
Also, my latest Section 230 piece hot off the virtual presses: Dear President Biden: You Should Save, Not Revoke, Section 230. My full Section 230 bibliography.
In 2011, The High Tech Law Institute held a 15 year retrospective. The conference page with videos and more.
Section 230 Schwag
I trust most of you already own Jeff Kosseff’s book, The 26 Words That Created the Internet. My squib from the book marketing:
Most people benefit from Section 230 every hour, but are unaware it even exists. Jeff Kosseff’s new book provides the first-ever comprehensive history of this monumentally important law. The book’s lucid and reader-friendly style will fully engage Section 230 newcomers; while the book’s many never-before-publicized details will enlighten Section 230 enthusiasts.
Some additional treats for Section 230’s birthday from the ILSO Section 230 store, including socks, mugs, t-shirts, and masks.
Some Section 230 items in my collection (the depicted license plate is Jess Miers’, not mine):
- Section 230 tie.
- “I am fucking tired of Section 230 reform” t-shirt (unfortunately, out of print).