This feature first appeared in the Winter 2023 issue of Certification Magazine. Click here to get your own print or digital copy.

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Whenever there is a discussion of what is "wrong" with the internet, invariably someone will bring up Section 230 of the Communications Decency Act — typically shortened to just "Section 230" — and most nod their heads in agreement. Though many agree that it is a significant part of the problem, surprisingly few know what it really is.

Section 230 has been a part of the discussion for so long that many simply attach their personal quarrels onto Section 230 without a second thought. To understand what this legal clause is, it helps to examine it further and have some perspective on why it was created and what it actually says.

In the beginning

Almost 30 years ago, there was an unprecedented surge in popularity of the internet among users who had only a rudimentary understanding of what it was or what it could do. They just wanted to go online. "The internet" had existed in various forms for years before that time, but access had long been limited and, in point of fact, not really sought by most.

To provide access for eager users back then, a number of service providers popped up offering to provide a portal for those who dialed in via modem or found some other way to connect. Some of the early portal providers were America Online (AOL), CompuServe, and Prodigy: Each of these service providers competed for paying subscribers by offering slightly different additional features along with the coveted internet access.

Those additional features included things like forums, groups, newsletters, lists, and so on — each intended to lure subscribers to one provider as opposed to another. At this early stage, it was not possible for subscribers on AOL to see what was on Prodigy or CompuServe, and vice versa.

Invariably, someone would become offended by the content hosted by each of the various service providers and file lawsuits against them. Judges would then be charged with trying to determine exactly what an internet service provider (ISP) should be and how it should behave.

This was mostly done by looking for analogies from earlier days, since much of law is based on precedent, and thus it is important to consider previous rulings even when the par - ties differ slightly. Two of the closest analogies to an ISP that came to the forefront were that of a bookstore and that of a newspaper.

The bookstore model

If you think about a giant bookstore — or a library — there are typically thousands of individual books. Some of these volumes are old and recognized by many. Think of "the classics." Others are brand new and contain largely unknown subject matter. They just came out, few people have read them, and not many are even looking for them.

It is very unlikely that anyone working at our hypothetical bookstore has read every single page of every volume available and could immediately identify the content ("There is a bad word on page 23 of this particular title") and/or defend it.

While there have been some exceptions, for the most part past legal rulings have been that a clerk working at a bookstore should not be held liable for content inside the books sold there. This applies, of course, only as long as the clerk did not know — and could not reasonably be expected to know (such as by word of mouth) — that the content in question was profane, obscene, libelous, or otherwise injurious.

The newspaper model

On the other hand, if you think about a newspaper, deliberate thought has been put into the content that is printed in each issue. Journalists and photographers have been paid to collect information on topics typically assigned to them by an editor, and copy staff have helped to fact check and shape the resulting articles.

Editors have the ability to pull articles, to shorten them, to dictate that they incorporate a particular perspective, and so on. While there have been some exceptions, for the most part past legal rulings have been that newspapers (and editors) are responsible for the content of each issue and can be sued if it is false, defamatory, or injurious.

The same but different?

Early on, the distinction any given judge made as to whether they viewed an ISP as a bookstore or a newspaper made all the difference when it came to determining whether to hold them responsible for the content on their site or not.

To complicate matters further, Prodigy promoted its ISP offering as being different than the others in that it enforced user conduct standards (such as not allowing obscenities). Competitors did not make this claim. This could thus lead to the inference that Prodigy was acting like a newspaper, while the others were bookstores — and create completely different legal landscapes for highly similar businesses.

A defense that CompuServe and AOL could thus offer is that they only hosted content and were not responsible for it: as merely a distributor, they would be considered immune from prosecution. Prodigy, on the other hand, had no such defense since they monitored content and were thus (arguably, from a legalistic standpoint) responsible and accountable for it.

Not only was this logic difficult to rationalize, but it was also much too limited. While one might be able to differentiate between ISPs when there were only a small number of them, regulating ISPs did not take into account sites that were popping up that were not providing Internet access but were hosting a lot of content coming from many places — users, other sites, aggregators, and so forth. The heart of the issue became whether any online service, not just ISPs, should be responsible/liable for third-party content.

The birth of Section 230

At the same time that these issues were beginning to work their way through the courts, a 60-year-old piece of legislation was being updated. The Communications Act of 1934 was heavily focused on the landline telephone in a day when its use was changing, and thus that act was being updated to what would become known as the Communications Decency Act of 1996.

During the update process, two senators introduced a short clause — known as Section 230 — to address the growing problem with disparities in the way responsibility for content hosted by online providers was being perceived. (The pioneering senators were Chris Cox, a Republican from California now retired from politics, and Ron Wyden, a Democrat from Oregon elected to his fifth term in November.)

The entire act can be read online. In an ironic twist, the words in the clause known as Section 230 have become far more meaningful and debated than anything else related to that entire act.

Of key importance are the following 26 words: "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." Not only does this bring the bookstore model of content to the vanguard, but it specifically spells out that an ISP or other host is not responsible for content that can be found on a site provided by a different entity.

The term "interactive computer service" is defined within the clause as "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."

An "information content provider," by contrast, is defined as "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." In other words, the definitions are loose enough to provide protection to almost every content hosting site.

Proceed with caution

As troublesome as those loose definitions may be, consider the changes that have occurred over the past 25 years in terms of the internet and how the absence of this protection would have hampered much of what we value in terms of content today. If such protection did not exist today, it is arguable that we would not have the same proliferation of:

User reviews posted for almost every product sold online — In many cases, potential buyers care much more about what anonymous reviewers have to say about a product than what its manufacturer has to say about it.

Comments and discussions/ threads associated with news articles — Often these can offer differing points of view or provide additional information/links on issues the individual article did not touch on.

Blogs, search engine results, almost all of social media, and many other things

It can be easy to lump this protection in with the First Amendment, but it is important to note two key things. First, the First Amendment protects what you say, while Section 230 protects what you are allowing others to say. Second, the protection it provides is almost unparalleled in scope, in that it offers more protections to online companies than are available to companies in any other medium (newspapers, educational institutions, and so forth).

All of this has led to a movement to repeal, or limit, Section 230. Often the leaders promoting this crusade are those who are being spoken of unfavorably and would like to see the right to such expression curtailed. Before going too far down that path of thinking, though, serious thought should be given to why Section 230 was created in the first place.

It may not be a perfect piece of legislation (few are), but it addressed a disparity that existed then and was only going to exponentially widen as time went on. It came about in a moment when it was needed and it was intentionally written in a way so as to stay relevant as internet usage exploded. The impact of its removal on the way we see and interact with content would be substantial and thus it would be important to fully consider all the ramifications before proceeding further.

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