March 08, 2023

Wyden Remarks at Section 230 Briefing Hosted by EFF

As Prepared for Delivery

I wanted to take a few minutes to share my thoughts on why Section 230 remains vital to a functioning internet - and how the Supreme Court oral arguments and briefs in Gonzalez v. Google helped make the case for 230. 

First of all, Section 230 is a law that Chris Cox and I wrote. It essentially says that the person who creates a piece of content online is the one responsible for it. 

As a result of 230 and the First Amendment, websites are able to take down posts they don’t want — stuff like hate speech and violent content and other muck — and elevate other posts.

So much of the focus on Section 230 is on the big social media companies. But my goal with 230 is protecting two groups: First, users, who want to be able to speak online and to access interesting content. And second, the startups and small sites that want to compete with the incumbents — whether that’s going up against big cable or big tech. Everyone from Wikipedia to Reddit to a knitting message board.

It’s what allows sites to host controversial content without fear of being deluged with lawsuits. 

For example, not a single Me Too post accusing powerful people of wrongdoing would be allowed on a moderated platform without Section 230. 

Or look at how Black journalists have used Twitter to call out their own management on coverage of police violence. Even at the New York Times, where journalists raised concerns about the paper’s op-ed page, or coverage of transgender issues.

And just look at how some Republican state officials are trying to shut down online conversations about abortion and reproductive health. Section 230 is the first line of defense against those repressive laws.

It has been clear for several years that Justice Thomas and Justice Alito want to take a sledgehammer to the law and force companies to carry all sorts of harmful content.  

Before the other justices consider going along with them, Chris Cox and I thought that the court should hear from the people who wrote the law.  

The case before the court now asks whether using an algorithm to sort or suggest content to users is protected by 230. Two decades of case law and the plain text of Section 230 say that kind of curation is protected.

Catching up on the oral arguments in this case, the justices recognized that it is very hard to make a distinction between an algorithm like google search, which suggests results based on what you ask and where you’re located, and an algorithm that suggests videos or posts in a news feed. 

Several of the justices seemed to recognize that taking away section 230 for algorithms is not far from taking away section 230 in general. I’ll come back to why neither of those options would leave users better off. 

The justices also seemed to be looking for how the attorneys in this case would draw lines to see where Section 230 does not protect sites. Chris and I wanted to make clear that Section 230 is not a get out of jail free card. 

We highlighted several cases where courts decided companies were not protected by Section 230 — like Lemmon v. Snap, where a family sued over Snapchat’s speed filter. The company created the filter, it’s not user generated content, so it’s not protected by 230. It also doesn’t protect Amazon when it delivers defective products, or websites that provide illegal online home rentals.  If you write an algorithm that only shows housing ads to people of a certain race, which is something I believe Justice Sotomayor asked about, the courts have correctly decided that’s not protected by Section 230 either. 

And of course, Section 230 doesn’t provide any protection against federal crimes. 

Two final points. First I want to be clear that Google and Meta and Twitter and Microsoft all need to do a better job of protecting users on their sites. The facts in the Gonzalez case are an awful example of YouTube failing to remove terrorist content from its site, which is clearly unacceptable and a dereliction of their responsibility to users. 

To my mind the first place to start in holding companies accountable is passing a strong privacy law, to attack the business model so many of the big tech companies depend on. If you take away the incentive to hoover up users’ personal data, you make it much harder to target them both with ads and with objectionable content. 

I also support more aggressive antitrust enforcement and the Open App Markets Act, to create more competition in the market and make it easier for new companies to grow. 

There may be ways to change Section 230 to make it clearer about what the law is supposed to protect, and what it isn’t. I’m constantly evaluating ways to make the internet a better place for users. But as the son of a journalist I can’t support any bill that narrows the First Amendment in the process, or that discourages moderation. So far, the proposals on offer violate one or both of those principals. 

I’ll close with this. I know some of my colleagues now think it’s a good idea to scrap Section 230. They claim that getting rid of 230 would solve everything from the opioid epidemic to sex trafficking to bias against conservatives online. I’ll just say, be careful what you wish for. 

When Congress passed SESTA-FOSTA with the laudable goal of stopping sex trafficking online, I warned that it wouldn’t work, and would create significant collateral damage in the process. 

Five years later, that misguided law has ended up doing nothing to protect victims or bring sex traffickers to justice. Instead it’s driven sex work to the dark web and dark alleys, and by all accounts violence against sex workers has skyrocketed. Meanwhile the threat of lawsuits has led sites to take down content that has nothing to do with sex trafficking, including LGBTQ forums. 

That’s a preview of a world without 230. Stopping online conversations won’t solve the problems politicians claim they will. But without Section 230 and the First Amendment, it would be harder for marginalized voices to call out wrongdoing by powerful people. And easier for the government to set the terms of public debate. It’s no accident that Russia and China are obsessed with controlling online speech. 

If Section 230 were repealed tomorrow, there would be immense pressure on websites to quickly take down content that offends people with power, and anything else outside of the comfortable and the mainstream. That’s not a world I want.


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