What is Section 230 and Why is Trump Wrong About It?
We saw that Donald Trump was willing veto the 2021 Defense Appropriations bill and risk our nation’s security because Congress refused to include a provision in the bill that would cancel a law called “Section 230.” Of course, in late December 2020, Congress refused to give in and overrode Trump’s veto, funding the military and keeping Section 230 on the books. What was so important in Section 230 to inspire Trump’s hatred of it and why was it so important that even loyal Trump Republicans would incur Trump’s wrath and vote against him?
Trump was upset that Section 230 allowed internet service providers and social media companies to highlight and sometimes block the untruths he spewed about the election and other subjects. And now, of course, the companies have gone so far as to ban him entirely from Twitter, Facebook, and other sites. Trump used Twitter, in particular, as his primary communication tool to reach out to his followers. Section 230 gave the companies running the services like Twitter the right to restrict anyone, including Trump, from using their business to convey messages and information that they deemed “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Those words come directly out of Section 230.
Many people call Section 230 “the law that made the internet possible.” Besides being a broad statement of policy, Section 230 has two important operative provisions (among others). One of these provisions is the protection that Trump hates that Twitter used against him, and the other is a protection that, ironically, is the law that allows all web service companies to function freely, especially the alternative “free speech” sites like CloutHub, Parler, Gab and their cousins. If it were not for Section 230, the Internet as we know it in America and much of the social media world and political communication on the web would not exist. The Trump supporters who lambast the Big Tech social media companies for silencing them and Trump would not have any alternative if not for Section 230. As a side note, virtually every developed country has put into law some provision similar to Section 230.
Section 230’s full name is Title 47 United States Code Section 230. Subsection (c)(2) of Section 230 is Trump’s nemesis. (c)(2) provides that no service provider can be prevented from taking action against the restricted content mentioned above and removing it from its service. They can censor content they deem improper or dangerous. But, at the same time and very importantly, subsection (c)(1) provides that such provider is not to be considered “the publisher or speaker of any information provided by another information content provider.” That is, CloutHub, Parler and the other similar sites, if they want to, can allow Trump and his followers and anyone else they want to do business with to use their service and the company itself will not be held responsible for their words or the resultant deeds carried out by the service. If not for this second provision of Section 230 very few businesses could afford the legal liability of being the “publisher” of the untruths, bizarre communications and prurient information that creeps into social media sites and web portals. Thus, Trump’s hatred of Section 230 is illogical and ultimately self-destructive of his communications goals and his followers freedom to say what they want without restriction, somewhere.
Section 230 is indeed the law that lets Facebook, Twitter, Instagram, Google, Yahoo, and every other major and minor internet service provider let others use their services to communicate, advertise, cajol, plead, show-off, entice and whatever else they want to do on the web without the business entity being held legally liable for what other people put out via their service.
Far from being a hated tool against free speech that Trump claimed it was, it turns out the Section 230 is the heart and soul of a free and active internet. It allows a company on the Internet to both handle any information it wishes and it allows them to use their best judgment as to what is socially and ethically appropriate to be conveyed with their business resources. It allows users to find businesses who can convey their message without being fearful that every action of those users could bring legal consequences to the businesses.
A full text of Section 230 follows:
47 U.S. Code § 230 – Protection for private blocking and screening of offensive material
(a)FINDINGSThe Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b)POLICY It is the policy of the United States—
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(c) PROTECTION FOR “GOOD SAMARITAN” BLOCKING AND SCREENING OF OFFENSIVE MATERIAL
(1) TREATMENT OF PUBLISHER OR SPEAKER
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.
(2)CIVIL LIABILITY No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
(d) OBLIGATIONS OF INTERACTIVE COMPUTER SERVICE
A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
(e)EFFECT ON OTHER LAWS
(1)NO EFFECT ON CRIMINAL LAW
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.
(2)NO EFFECT ON INTELLECTUAL PROPERTY LAW
Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
(4)NO EFFECT ON COMMUNICATIONS PRIVACY LAW
Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
(5)NO EFFECT ON SEX TRAFFICKING LAWNothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—
any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;
any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18; or
any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.
(f)DEFINITIONSAs used in this section:
The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2)INTERACTIVE COMPUTER SERVICE
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3)INFORMATION CONTENT PROVIDER
The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4)ACCESS SOFTWARE PROVIDERThe term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
filter, screen, allow, or disallow content;
pick, choose, analyze, or digest content; or
transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
(June 19, 1934, ch. 652, title II, § 230, as added Pub. L. 104–104, title V, § 509, Feb. 8, 1996, 110 Stat. 137; amended Pub. L. 105–277, div. C, title XIV, § 1404(a), Oct. 21, 1998, 112 Stat. 2681–739; Pub. L. 115–164, § 4(a), Apr. 11, 2018, 132 Stat. 1254.)