What You Need To Know About Section 230 And Potential Social Media Reforms

Following Facebook’s Oversight Board’s decision to uphold former President Donald Trump’s ban from Facebook and Instagram, Republicans reignited calls to revoke Section 230 protections for Big Tech corporations. The Board did, however, say that if a permanent ban is instituted, the company needs to clarify its standards surrounding bans.

“As Facebook suspended Mr. Trump’s accounts ‘indefinitely,’ the company must reassess this penalty,” the Board said, according to a report from The Daily Wire. “It is not permissible for Facebook to keep a user off the platform for an undefined period, with no criteria for when or whether the account will be restored.”

Shortly after the decision, former White House chief of staff Mark Meadows said that a “breakup of Big Tech” is likely to take place. Although Congress could focus on regulation, it would make more sense to pass legislation to address the issue, Meadows explained.

“When you look at Google and Facebook, they have more power over what we read and what we see than any in the media,” Meadows said. “Google and Facebook and YouTube actually control much of what America sees, whether it’s you and I talking right now and it gets reposted on any of those platforms, they have the ability to actually raise that profile or lower it. And so, it is time that we break up Big Tech, not just regulate it.”

Other Republicans, such as Rep. Jim Banks (R-IN) and Rep. Lisa McClain (R-MI), are in agreement with Meadows that Section 230 protections need to be reformed.

But what exactly is Section 230 and how does it protect social media platforms?

About the law

Section 230 of the Communications Decency Act of 1996 protects Internet service companies that “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.”

The original goal was to protect small startup companies from being held liable for what content their users post, including any content deemed “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

“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,” the law states.

This section of the law has allowed social media platforms to flourish, as the Electronic Frontier Foundation explains:

This legal and policy framework has allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users. Given the sheer size of user-generated websites (for example, Facebook alone has more than 1 billion users, and YouTube users upload 100 hours of video every minute), it would be infeasible for online intermediaries to prevent objectionable content from cropping up on their site. Rather than face potential liability for their users’ actions, most would likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online.

Why it’s controversial

According to some conservatives, Big Tech companies like Facebook, Twitter, YouTube, and Google are no longer deemed “internet service providers” when the companies regulate what speech is acceptable. In their opinion, deleting specific content or suspending certain users makes those platforms “publishers,” and should therefore not be protected in the same way.

Last fall, the Department of Justice — at President Donald Trump’s direction — reviewed Section 230 and issued a number of potential reforms, with one such area being the issue of content moderation, explained under the title, “Promoting Open Discourse and Greater Transparency.”

A fourth category of potential reforms is intended to clarify the text and original purpose of the statute in order to promote free and open discourse online and encourage greater transparency between platforms and users.

a. Replace Vague Terminology in (c)(2).  First, the Department supports replacing the vague catch-all “otherwise objectionable” language in Section 230(c)(2) with “unlawful” and “promotes terrorism.”  This reform would focus the broad blanket immunity for content moderation decisions on the core objective of Section 230—to reduce online content harmful to children—while limiting a platform’s ability to remove content arbitrarily or in ways inconsistent with its terms or service simply by deeming it “objectionable.” 

b. Provide Definition of Good Faith.  Second, the Department proposes adding a statutory definition of “good faith,” which would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and accompanied by a reasonable explanation, unless such notice would impede law enforcement or risk imminent harm to others. Clarifying the meaning of “good faith” should encourage platforms to be more transparent and accountable to their users, rather than hide behind blanket Section 230 protections.

c. Explicitly Overrule Stratton Oakmont to Avoid Moderator’s Dilemma.  Third, the Department proposes clarifying that a platform’s removal of content pursuant to Section 230 (c)(2) or consistent with its terms of service does not, on its own, render the platform a publisher or speaker for all other content on its service.

Although the subject of reforming Section 230 is one both sides of the aisle can get behind, change, at least for now, remains unlikely, especially with President Trump as the focal point.

RELATED: Facebook Board Upholds Trump Ban, Demands Platform Clarify Standards

Beth Baumann is a Political Reporter and Editor at The Daily Wire. Follow her on Twitter @eb454.

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