When the COVID-19 Dust Settles, What Will Become of Section 230?

Back before the COVID-19 pandemic began (understandably) dominating the headlines, the chief development out of Washington, D.C. that I’d been keeping an eye on was the growing momentum among members of Congress to amend or even repeal Section 230 of the Communications Decency Act.

While it wasn’t the first time I’d heard a member of Congress sound the alarm about the possibility of Section 230 being overhauled, I didn’t truly take the notion seriously until in the summer of 2018. That’s when Sen. Ron Wyden, one of the chief Congressional architects of the safe harbor provision, penned an article for TechCrunch in which he warned that “failure by the companies to properly understand the premise of the law is the beginning of the end of the protections it provides.”

“I say this because their failures are making it increasingly difficult for me to protect Section 230 in Congress,” Wyden continued. “Members across the spectrum, including far-right House and Senate leaders, are agitating for government regulation of internet platforms. Even if government doesn’t take the dangerous step of regulating speech, just eliminating the 230 protections is enough to have a dramatic, chilling effect on expression across the internet.”

In the months since Wyden published that article, Section 230 has been on the lips of both Republicans and Democrats in Congress. Speaker of the House Nancy Pelosi remarked to the Recode Decode podcast that “230 is a gift to (providers of interactive computer services) and I don’t think they are treating it with the respect that they should.”

“And so I think that that could be a question mark and in jeopardy,” Pelosi added. “For the privilege of 230, there has to be a bigger sense of responsibility on it, and it is not out of the question that that could be removed.”

Others in Congress have weighed in with similar comments – and of course the presumptive Democratic nominee in the 2020 election, Joe Biden, gave his hot take just a few months ago that Section 230 “should be immediately revoked.”

In early March, before COVID-19 and the adult industry’s reaction to it became such a focus for us all, I reached out to several industry attorneys to ask them how concerned they were about the expressed desire on the part of some members of Congress to amend, undermine or even abolish Section 230.

Attorney Corey Silverstein responded that he was “extremely concerned” about the prospect.

“Any attempt to weaken Section 230 is a step back from free speech on the internet and a step towards restricted/moderated content” Silverstein added. “In fact, the weakening of section 230 only creates the fear of persecution for the posting of content, regardless of form.”

Reed Lee, who chairs the Legal Committee of the Free Speech Coalition said he had “presented on a very closely related issue at the First Amendment Lawyers Association conference in San Juan, Puerto Rico,” just about a week and half before I contacted him with my question.

“The imposition of special statutory duties to police the content generated and uploaded by others would very seriously hamstring the Internet,” Less said adding that “no one ever seriously suggested that the telephone company should be vicariously culpable for criminal conspiracies hatched over the telephone or that it had some affirmative duty to screen what telephone users say to one another.”

“Moreover,” Lee continued, “I have long thought that Section 230 really does nothing more than restate a legal rule already required by the First Amendment itself. If that is correct, an amendment to Section 230 will not change the law.”

In his response, attorney Larry Walters said he and his colleagues were “tremendously concerned with the recent efforts to undermine Section 230,” a limitation on liability which, Walters added, “is considered the ‘First Amendment of the Internet.’”

“Section 230 has become a whipping boy in the political war against Big Tech,” Walters said. “However, any effort to roll back Section 230 immunity will hurt online innovation by start-up companies and result in a further sanitization of the internet.”

“With these efforts, we are getting closer to the elimination of the user-generated content business model which drove all the significant Web 2.0 developments,” Walters added. “Ultimately, we may be left with nothing but curated content online, controlled by large media gatekeepers. This would be antithetical to the ethos of the internet and a devastating development for mass online communication.”

With the world’s attention focused on the COVID-19 pandemic and the usual business of Congress disrupted by the same, it’s unlikely changes to Section 230 will be made any time soon. When Congress does get back to something resembling business as usual though, we shouldn’t be shocked if the discussion of gutting Section 230 is quickly put back on the table for consideration.

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