Anthony J. Pennings, PhD

WRITINGS ON DIGITAL STRATEGIES, ICT ECONOMICS, AND GLOBAL COMMUNICATIONS

The CDA’s Section 230: How Facebook and other ISPs became Exempt from Third Party Content Liabilities

Posted on | November 26, 2019 | No Comments

“The rewrite of the communications law that emerged by early 1996 was driven by the appetite of the Bell legatees to position themselves as central providers of both content and conduit for the information age.” – Patricia Aufderheide [1]

Facebook and other Internet Service Providers (ISPs) face criticism for the legitimacy of the third party content they carry and their attempts to manage it. Political advertising has been a major issue, but more recently, the legitimacy of President Trump’s tweets. Another issue is the social media activity on Robinhood and Reddit that created a spike in the share prices of the GameStop company. This was exactly the type of activity that prompted Congress to create legislation to protect “publishers.”

This post discusses how legislation in the 1990s gave web platforms the power to censure or take down third party content from their sites. According to Title V of the Telecommunications Act of 1996, online intermediaries such as ISPs and telcos were legally protected from what users and publishers might do or say. The legislation was passed to enhance these service providers’ ability to monitor and even delete content without becoming publishers. In an emerging age of user-curated and user-generated content, the legislation has specific implications for news and social media provision in general.

Specifically, Section 230 of the Communications Decency Act (CDA) stated, “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] Section 230 also offered protection to bulletin boards and later bloggers who host comments. Bloggers and later vloggers such as YouTube channels were not liable for comments left by readers or tips left via email.[3] Although the Supreme Court struck down the CDA as being too restrictive to free speech, Section 230 continued to shape Internet services.

The Clinton Administration and its appointed Federal Communications Commission (FCC) Chairman worked with the Republican-controlled Congress to pass the Telecom Act of 1996 and its associated Section 230 of the CDA. President William Jefferson Clinton, Vice President Al Gore, and the new FCC Chair, Reed Hundt, drove the policy process intending to enact a new telecommunications re-regulation to help revive the economy with a strategy based on the centrality of information technology. An agreement depended on getting some support from the new Republican Congress.

Republicans grouped around Newt Gingrich, a history professor from Georgia, who had been elected to the US House of Representatives in 1979. “Newt” proposed a new strategy of extreme partisanship, encouraging a total lack of cooperation with Democrats. He attacked House Speaker Jim Wright on ethics charges of bribery and not reporting book receipts, eventually driving him from office. Often invoking the memory of Ronald Reagan, Gingrich helped move the political landscape significantly to the political right.

Gingrich became the chief architect of the infamous “Contract with America,” an attempt to revive the Reagan Revolution. The Contract attempted to legislate the Republican right’s radical agenda, such as cutting back on welfare, forcing a balanced budget, eliminating public television, and phasing out government regulations on the media and telecommunications industries. Newt also wanted to get rid of the FCC, and relax accounting and securities rules on corporations.

On November 8, 1994, the Republicans obtained the House majority with a flood of new freshmen Congressmen, including Sonny Bono, the former Mayor of Palm Springs and the slightly less talented side of the “Sonny and Cher” act. Another new Congressman, Joe Scarborough later became the host of “Morning Joe,” an MSNBC morning cable news show. With the Republican victory, Gingrich became the Speaker of House, coordinating the legislative agenda and stepping up his divisive efforts.

On the legislative docket was a signficant reform of the Communications Act of 1934, eagerly pursued by both the Democrats and the Republicans. Central for Gingrich was abolishing the FCC and rolling back anti-monopoly regulation. Tom DeLay (R-Tex.) worked with some 350 industry lobbyists drafting the telecom deregulation bills. Called Project Relief, the secretive group organized campaign contributions for the legislation’s supporters while charting a course for a new era of oligopoly-controlled media content distribution.

It was the Democrats that took the more prurient course. Despite Gore’s objection, Senator J. James Exon, a Democrat from Nebraska, inserted the Communications Decency Act that criminalized offensive content. Section 230 of the Communications Decency Act was not part of the original Senate legislation. Still, it took shape in negotiations with the House of Representatives, where it had been separately introduced by Congressmen Christopher Cox (R-CA) and Ron Wyden (D-OR). Called the Internet Freedom and Family Empowerment Act, it passed by a near-unanimous vote.

One of the key issues guiding Section 230 goes back to a lawsuit called Stratton Oakmont v. Prodigy. Stratton Oakmont was a financial institution, and Prodigy was an online service that ran a chat room and offered several other services such as news and weather. Stratton Oakmont sued Prodigy because an anonymous participant in the chat room tarnished the financial company’s good name.

Because the person who posted the information could not be found, Stratton Oakmont sued Prodigy. They won a 1995 U.S. New York Supreme Court decision that held that online service providers could be held liable for their users’ speech. They considered Prodigy to be a publisher as they had been filtering offensive content.

Congress, with encouragement from the telcos, did not agree and worked to overturn the Prodigy decision.[4] It targeted the Communications Decency Act of 1996 to establish immunity for ISPs for publishing third party information. It added Title V: Obscenity and Violence and was introduced to the Telecommunications Act of 1996 by the Senate Committee on Commerce, Science, and Transportation.

Written by Senators James Exon (D-NE) and Slade Gorton (R-WA), Title V attempted to regulate both the exposure of indecency to children and obscenity online. It was added to the “Telecom Act” in the Senate on June 15, 1995, by a vote of 81–18. Title V effectively immunized both ISPs and Internet users from torts committed by others using their online services. The exemption was designed to protect the service provider, even if they fail to take action after receiving complaints about the harmful or offensive content.

Postscript

Early in the 2020 presidential elections, President Trump issued an executive order directing the National Telecommunications and Information Administration (NTIA) to examine the scope of Section 230 and to examine the possibilities of limiting the power of social media platforms. The action came after Twitter placed fact-checking warnings on two of his tweets about election fraud. He claimed, without credible evidence, that voting with mail-in ballots will result in election fraud.

It’s not likely that President Trump can muster up the political support in Congress to make significant regulatory changes. The Department of Justice, led by Attorney General William Barr, has drafted legislation to narrow the guidelines for liability protections. Of particular concern were posts and submissions that violated criminal laws, but critics worry about a slippery slope.

Weeks before the election, Trump drafted an executive order that would require the Republican-led FCC to provide additional guidelines for web publishers. Trump’s election loss ended his quest to change Section 230 but the issue is being discussed again as social media became weaponized to counter short sellers in the financial markets.

Notes

[1] Aufderheide, Patricia (1998) Communications Policy and the Public Interest: The Telecommunications Act of 1996. NY: Guilford Publications, Inc. p. 37.
[2] (47 U.S.C. § 230). U.S. Code Title 47. TELECOMMUNICATIONS Chapter 5. WIRE OR RADIO COMMUNICATION Subchapter II. COMMON CARRIERS Part I. Common Carrier Regulation Section 230.
[3] Mackey, Aaron, et al. “Section 230 of the Communications Decency Act.” Section 230 of the Communications Decency Act, Electronic Frontier Foundation, www.eff.org/issues/cda230. Accessed November 25, 2019.
[4] See H.R. Conf. Rep. 104-58, at 194. “information provided by another information content provider,” 47 U.S.C. § 230(c)(1).
[5] A tort is a legal liability for a civil wrong done by a person that unfairly causes someone else to suffer some harm or loss.

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AnthonybwAnthony J. Pennings, Ph.D. is Professor at the Department of Technology and Society, State University of New York, Korea. From 2002-2012 was on the faculty of New York University. Previously, he taught at Hannam University in South Korea, Marist College in New York, Victoria University in New Zealand. He keeps his American home in Austin, Texas and has taught there in the Digital Media MBA program at St. Edwards University He joyfully spent 9 years at the East-West Center in Honolulu, Hawaii.

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    Professor at State University of New York (SUNY) Korea since 2016. Moved to Austin, Texas in August 2012 to join the Digital Media Management program at St. Edwards University. Spent the previous decade on the faculty at New York University teaching and researching information systems, digital economics, and strategic communications.

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