Should Big Tech be held more liable for the content on their platforms? An AEIdeas online symposium
Mike Godwin, Distinguished Senior Fellow at R Street Institute.
No. Time has shown the wisdom of Section 230, and its current critics are looking either for new deep-pocketed defendants or for a chance to impose new enforcement obligations on the platforms for content they don’t like.
In pure economic terms, Section 230 (together, it must be said, with the Digital Millennium Act’s notice-and-takedown provisions regarding copyrighted works) has been a success — the leading internet companies (among Western democracies at least) have been American companies. Section 230, with its bright-line rules barring internet services’ legal liability for content a service’s users (rather than the services themselves) originate brought the Cubby v. CompuServe model into the 21st century. Services could “curate” user content if they wanted to (just as a bookstore has a First Amendment-grounded right to choose which books it carries and sells), but wouldn’t be liable either for content they overlooked or for content they had (mis)judged to be lawful. In the digital world, Section 230 gave the platforms something like common-carriage legal protections but also autonomy to shape the character of their online “spaces.”
But because some platforms have been hugely successful, and because market shakeouts have left some players like Facebook and Google dominant (at least for now), other players have sought to roll back Section 230. Most recently the ostensible focus has been on sex trafficking (and commercial sexual services generally), which some critics believe has been made worse by online platforms like Backpage.com. (Never mind that Backpage almost certainly isn’t protected by Section 230, given what we now know about the service’s role in originating sex-service content.) But, really, the nominal concern about internet sex-trafficking is meant to be a stalking horse for players who are looking for opportunities either to sue the platforms and win big bucks or to impose stronger censorship obligations on the platforms for a variety of reasons — not least of which is today’s moral panics about social media and big tech, which I’ve written about here and here.
There’s nothing wrong with revisiting Section 230, more than two decades after its passage, and considering whether its protections need to be refined. Maybe they do. But given that there is a larger moral panic going on about social media, we shouldn’t rush to judgment about amending or repealing Section 230. Most ordinary internet users love Google and Facebook (even when they’re sometimes irritated by what they find on these and other platforms). We ought not to heedlessly, clumsily hobble the legal protections that allowed these American success stories to flourish. Even if today’s internet giants can survive the loss of Section 230 and absorb the costs of censorship compliance, new market entrants likely can’t. Which means that hobbling 230 will stifle the competition that got us to today’s rich internet in the first place.