Lately, a 26-word section of a law from the 1990s has been getting a lot of attention. Section 230 of the Communications Decency Act essentially says tech platforms can’t be held liable for most things their users post on those platforms.
The same section has been under attack recently from politicians and others who say it gives companies too much protection in this age of harassment, radicalization and misinformation. But even as the debate is happening, the law is being exported, so to speak. Language similar to Section 230 is part of U.S. trade agreements with Japan and made the cut in the recently agreed upon deal with Mexico and Canada.
We talk about what that means in “Quality Assurance,” the Friday segment where I take a deeper look at a big tech story. I spoke with Margaret Harding McGill, a tech policy reporter for Axios. The following is an edited transcript of our conversation.
Margaret Harding McGill: That benefits the tech companies, of course, because they get to extend these protections to other countries. They feel that they will be protected in other countries from being sued for hosting speech. From the trade representatives perspective, they see their job as extending U.S. laws globally. They want to make sure that American policy is extended to different countries.
Molly Wood: How big a deal is it for the tech companies?
McGill: I think it’s a win-win for the tech industry on two different fronts. One, they do get to extend these protections, so that helps them in other countries, for sure. But also in training them in these international agreements, it makes it more difficult for Congress to change the law domestically, which has been a conversation that’s been going on for the last couple of years.
Wood: Who is unhappy about this? We had heard that House Speaker Nancy Pelosi had tried to get this language kept out of this trade agreement. Who loses here?
McGill: This is a rare situation where you have Republican Sen. Ted Cruz publicly agreeing with House Speaker Nancy Pelosi on this issue. You’ve had lawmakers on both sides of the aisle saying, “Hey, Section 230-like language should not be in trade deals, this is not the place for it.” A lot of lawmakers are unhappy that this has been included in trade deals, but it was not enough of a sticking point to stop the agreement all together. There have been different groups and companies that have also opposed including it in trade deals. There was a labor union that wrote a letter to Speaker Pelosi — they represent a bunch of different workers, including hotel workers — saying it wasn’t right to include IBM and some content companies. The movie and music industry have also more broadly raised concerns about including 230-like language in trade deals, but opponents in the business world definitely wanted to see [the United States-Mexico-Canada Agreement] passed more than they wanted to get this taken out.
Wood: I wonder what that suggests for the future of Section 230 in the U.S., because there has been this conversation, and you have actually seen Republicans saying that Section 230 should be weakened or stripped because of a perceived bias at tech companies against conservative speech — all of these different reasons. We know that Congress sometimes talks a lot and doesn’t act, and I wonder if this is almost a signal that [Section] 230 might not actually be in that much trouble.
McGill: I think you could definitely read it that way. Lawmakers have said the U.S. should not be enshrining and exporting these protections and trade deals at the same time that they are actively considering changes. But there hasn’t been a big, serious push to make a change on [Section] 230. This year, there have been some ideas on opioids; there’s some related to short-term rentals. It’s around the edges, but not a big “we need to update this law, and here’s how we’re going to do it,” yet. But then again, Congress did pass a carve-out last year that makes it easier to sue platforms for hosting sex-trafficking content. It’s not completely unheard of for lawmakers to make changes to this law.
Wood: There has been this conversation, especially around digital taxation, about should there be some global standards of internet law? I wonder how much of a precedent does this actually set?
McGill: I think that we’re seeing a lot of different entities try and set the rules of the road for the internet and for tech companies. You have the European Union working to aggressively regulate U.S. tech companies, whereas China has its own vision for what the internet should be like, and it also imposes its own rules on internet companies that try and do business there. I think one lens to view this through is that this is the U.S. and the American tech industry trying to assert an American vision and American laws around the world, and is trying to tip the scales in the U.S.’ favor when it comes to global tech policy.
Related links: More insight from Molly Wood
For more on the history of Section 230, check out this episode of the “Make Me Smart” podcast that I did with Kai Ryssdal.
Back in June, we interviewed Jeff Kosseff, author of the book “The 26 Words That Created the Internet.” One thing that is interesting about the law, especially as we talk about it as this liability shield, is that it’s all-powerful and lets companies ignore everything that’s happening on their platforms. It also doesn’t require platforms to be hands off. They won’t be treated as publishers or take on more liability if they decide to intervene or take things down because it’s offensive or it’s misinformation. Two court cases after Section 230 was introduced specified that because people were worried that the law would incentivize companies to just ignore everything that was happening for fear of creating more liability.
I guess what I’m saying is this: Internet companies have benefited a lot from a law that let their companies grow huge and powerful, and that law is often over-interpreted as an all-powerful protection. But it doesn’t mean these companies don’t have any responsibility for what goes on on their platforms — not by a long shot.
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