--:-- Sean Rameswaram: Support for Today Explained comes from BetterHelp. Let me tell you a true story. Last weekend, I got an email from a listener who wanted to discuss their problems with me. And I said, look, I don't think that this is about me personally. At least I hope it's not. Why don't you try BetterHelp.com slash Explained? Absolute truth.
--:-- Sean Rameswaram: As the largest online therapy provider in the world, BetterHelp can provide access to mental health professionals with a diverse variety of expertise. Find the one with BetterHelp. The one is not me, guys. Our listeners get 10% off their first month at BetterHelp.com slash explain. That's BetterHelp.com slash explain.
--:-- Sean Rameswaram: This message is brought to you by Apple Card. Each Apple product, like the iPhone, is thoughtfully designed by skilled designers. The titanium Apple Card is no different. It's laser etched, has no numbers, and it earns you daily cash on everything you buy, including 3% back on everything at Apple. Apply for Apple Card on your iPhone in minutes. Subject to credit approval, Apple Card is issued by Goldman Sachs Bank USA, Salt Lake City Branch. Terms and more at applecard.com.
--:-- Sean Rameswaram: 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. Those 26 words you just heard are known as Section 230. It's a law that laid the foundation for the internet as we know it today. It made big tech behemoths like Google and Facebook possible. And it's not just big tech. I mean, it's any platform that hosts user content. So it goes anywhere from Facebook and YouTube all the way down to the community news site that I read every day in Arlington, Virginia, that has a pretty lively user comment section.
--:-- Sean Rameswaram: Law professor Jeff Kossif. But when I read some of the comments, I think, wow, they're pretty lucky that Section 230 exists because they really get into it. And so all of that open discussion would be much more closed if we didn't have Section 230.
--:-- Jeff Kossif: For the uninitiated, Section 230 essentially protects platforms from being responsible for everything users say. It sounds sort of small, but it's enormous. Take Yelp. Without Section 230, if Yelp were to receive a complaint about a user review, their choice would either be to take it down or they would have to possibly defend it in court as though they were the author.
--:-- Sean Rameswaram: And now I'm not going to speak for Yelp, but if I were their legal counsel in a world without Section 230, I would tell them immediately take down any review when you get a complaint because you're in no position to investigate whether that car mechanic has ripped off a consumer.
--:-- Jeff Kossif: So the internet would look very different. It would be much more of a one-way communication street than sort of the multilateral experience that we have now. So basically, whenever we write our opinion about anything on some platform on the internet, we're doing so by the grace of Section 230.
--:-- Sean Rameswaram: That's exactly right. Section 230 has been getting a lot of attention lately from politicians who'd like to rein in big tech, which Jeff Kossif did not see coming. When he wrote a book about it just a few years ago.
--:-- Jeff Kossif: Not at all. I started writing this book in 2016 because I had an academic interest in Section 230, and more than one university press, of all places, told me that there was not sufficient interest in something called Section 230 to publish a book about it.
--:-- Sean Rameswaram: So clearly, things have changed in the past few years. 230 turns 25 this week. So on the show today, we're going to explore the ways politicians would like to change this founding pillar of the Internet and how that could change just about everything we do online. But before we do, we're going to talk about Section 230's origin story.
--:-- Sean Rameswaram: So to understand Section 230, you really have to go back before the Internet. A flood tide of filth is engulfing our country in the form of newsstand obscenities. And is threatening to pervert an entire generation of our American children. In the 1950s, we had a very different and much more expansive view of what constituted obscenity, which could be criminally prohibited.
--:-- Sean Rameswaram: So you had a bunch of local laws that sought to criminalize the sale of obscene materials. Report objectionable material to the police. The law is your weapon. There was a 72-year-old man named Eliezer Smith who ran a bookstore in a kind of bad part of Los Angeles. And he gets a visit from an LAPD vice officer who determines that a book that he's selling in his store is criminally obscene.
--:-- Sean Rameswaram: And Eliezer Smith, he's an immigrant from Poland, and he says, you know, I don't read all the books I sell. I sell thousands of books. Leeser Smith, appellant versus the people of the state of California. And his case goes all the way up to the Supreme Court.
--:-- Sean Rameswaram: The chief justice members of the court. And the Supreme Court strikes down the law, and they say that you cannot hold the distributor of someone else's speech liable, absent any knowledge or other sort of culpable mental state, because that would chill too much speech.
--:-- Sean Rameswaram: The first problem you have when you deal with an innocent proprietor of a bookshop is this. If you're going to ask him, if you say to him, regardless of all the reasonable precautions you take, nevertheless, you will be guilty, the inevitable tendency is to stop the flow of books.
--:-- Sean Rameswaram: So even though obscene material is not protected by the First Amendment, by imposing liability with no knowledge whatsoever, that will actually chill other legal speech. So we have that rule, and it works pretty well over the next few decades for bookstores, for newsstands, those sorts of distributors.
--:-- Sean Rameswaram: But then we get to the early 1990s, and we have a very new type of distributor. Pretty fancy computer there. Want to give it a test drive? Me? And those distributors are online services. Prodigy Prodigy Prodigy and CompuServe are the two biggest CompuServe combines the power of your computer with the convenience of your telephone to bring you hundreds of online services like a complete set of encyclopedias.
--:-- Sean Rameswaram: When I tell students about this now, they just kind of give me a blank look, like, what are you talking about? But at the time, if you wanted to access information on your computer, you could either use local bulletin boards or you could go to these national services.
--:-- Sean Rameswaram: CompuServe was kind of like the Wild West. They did very little moderation or curation of content the third parties provided on their services. Prodigy, on the other hand, wanted to be family friendly. So they had much more detailed content policies, and they contracted out moderation because they wanted parents to feel comfortable letting their kids look up information on an online encyclopedia or participate in a chat group.
--:-- Sean Rameswaram: The kids, see who's this? Love it. One of the big reasons we got Prodigy. Not surprisingly, both CompuServe and Prodigy get sued for content the third parties post. They both get sued for defamation.
--:-- Sean Rameswaram: CompuServe manages to get the case dismissed because what the judge does is he looks at CompuServe and he says that CompuServe is basically like an electronic newsstand. And there was no evidence that CompuServe knew of the particular defamatory material.
--:-- Sean Rameswaram: So just like Eliezer Smith, CompuServe is not liable. Prodigy, on the other hand, they get sued. And the judge says, I'm not going to immediately dismiss this case because Prodigy is more like a newspaper than a newsstand. Prodigy has taken efforts to moderate user content, so that means that Prodigy becomes responsible for everything on its service, regardless of whether it knew about it.
--:-- Sean Rameswaram: Yeah, so this created a very different standard depending on whether you actually moderated content. So it's a company sort of paradoxically that is moderating its site that gets punished, while another that isn't moderating anything is let off the hook. Do I have that right?
--:-- Jeff Kossif: That's exactly right. So that's exactly what Section 230 was intended to fix. Who is it that ultimately steps up to figure this out so this isn't just bouncing around in the courts all the time?
--:-- Sean Rameswaram: Chris Cox, a Republican from Orange County who later became the SEC chairman under President Bush. At the time that we passed our bill, there were court cases that perversely made internet providers liable if they tried to exercise editorial discretion, keep smut off the internet, and so on.
--:-- Sean Rameswaram: And Ron Wyden, who at the time was a U.S. representative from Oregon, who's now a senator, who's a Democrat. Chris and I happen to think that there is the energy and the talent in the private sector, in the markets, which understand how much parents want these innovative blocking technologies now.
--:-- Sean Rameswaram: And politically, they have very different profiles. I've lived in Portland, and I can say that it is a very different place from Orange County, California. But they both were younger, and they had districts that relied pretty heavily on the tech industry. So they saw this as a way to really help promote growth in this new industry.
--:-- Sean Rameswaram: This is an industry in formation. It's only beginning. If the government takes the view that it can control it, define it, and regulate it while it's still an embryonic form, it's bound to fail.
--:-- Sean Rameswaram: And so what did they come up with? Tell me what these 26 words are. So Section 230 has a bunch of different provisions and definitions, but the main provision, what I call the 26 words that created the internet, say 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.
--:-- Sean Rameswaram: So what in essence that means, you can sue the person who posted the bad stuff about you. If it's defamatory, for example, but unless an exception applies, and there are a few different exceptions, you can't sue the platform where it was posted.
--:-- Jeff Kossif: And there were two reasons. First, it was to fix this disincentive to moderation. And the second goal was to say, we recognize this is a nascent industry, and it has a lot of potential, and we don't want to burden it down with regulation and litigation at the outset.
--:-- Sean Rameswaram: So we're going to take a hands-off approach, and basically the market will do its thing. And if a platform is doing too much moderation, people might not like that very much. But if it's doing too little moderation, people also might not like that. So it very much is saying, you know, let's let the consumer demand dictate what platforms do.
--:-- Sean Rameswaram: And does it make any sort of splash when it's introduced, when it's passed into law? Section 230 didn't really get attention until more than a year later when there was a case where AOL, they were sued for user content. And this was the first time that any company had been able to rely on Section 230 as a defense.
--:-- Sean Rameswaram: And the court interpreted Section 230 in an incredibly broad manner. And that's when people started to realize, wow, Section 230 is something that these online services and websites can really rely on to get rid of lawsuits.
--:-- Sean Rameswaram: So I think a lot of the big platforms now, I mean, they all started out as small companies, and I think that they could not have emerged with their current business models in a world without Section 230. Once they've gotten to the size and the wealth and the power that they have, they would be able to survive now without Section 230.
--:-- Sean Rameswaram: I think they'd have to change their operations pretty radically. But a small social media company that starts out being founded by a college student, that's something where if they were liable for every bit of content that their users posted, that would be very hard to get off the ground.
--:-- Sean Rameswaram: It would be hard to attract venture capital funding in that circumstance. So the same is true for any startups now that rely on user content and want to become the next Facebook or Twitter, Section 230 is pretty crucial for them.
--:-- Jeff Kossif: Jeff Kossif is a professor at the U Naval Academy and the author of a book titled The 26 Words That Created the Internet.
--:-- Sean Rameswaram: After the break, Section 230 may be one of the few things that the former president and, say, Elizabeth Warren can agree on. At least, kind of.
--:-- Sean Rameswaram: I'm Sean Ramos from It's Today Explained. Files done. All your relationships in a fully fledged platform, they say, all enriched with that actionable data. And they say you can build AI powered automations and use its research agent to tackle some of your most complex processes to seize so that you can focus on what matters, building your company.
--:-- Sean Rameswaram: You can join industry leaders such as Flatfile, Replicate, Modal, and so much more. You can go to adio.com slash today explained to get 15% off your first year. That's A-T-T-I-O.com slash Today Explained. App. Download today.
--:-- Sean Rameswaram: Addie Robertson, you're a senior reporter at The Verge. We just talked to Jeff about the sort of long history of Section 230, but we didn't get into the more contemporary political infighting over this issue.
--:-- Addie Robertson: When does it first become a political target? Section 230, in a broad sense, doesn't see a lot of legislative action for many, many years. And then in 2017 and 2018, there is this push to change it to address sex trafficking.
--:-- Sean Rameswaram: It has been a huge development in the attempt to regulate tech companies today, but it had nothing to do with Facebook.
--:-- Addie Robertson: Zosta Foster took away the safe harbor protection from any online speech that enables prostitution, including voluntary sex work. Police recorded a 170% jump in reports of human trafficking in San Francisco last year.
--:-- Sean Rameswaram: But we're learning that that huge spike appears to be connected to the federal shutdown of sex-for-sale websites. The goal of this law was to curb human trafficking, but it seems to be having the opposite effect.
--:-- Addie Robertson: FOSTA-SESTA becomes sort of the first time that this bill gets seriously debated in Congress for a while. But at that point, it's relatively bipartisan.
--:-- Sean Rameswaram: This is seen as an issue that most people on both sides of the aisle support. However, around that time, there's also a backlash building against social media, and that starts bleeding into the fight about Section 230 in ways that turn out to be really partisan.
--:-- Addie Robertson: So one of the earliest examples is that Mark Zuckerberg shows up in the spring of 2018 to talk to Congress, and Senator Ted Cruz says, well, under Section 230, you have to be a neutral public forum.
--:-- Sean Rameswaram: The predicate for Section 230 immunity under the CDA is that you are a neutral public forum. Do you consider yourself a neutral public forum? Are you engaged in political speech, which is your right under the First Amendment?
--:-- Addie Robertson: This is not actually how the law works, but it starts setting into motion this weird kind of contradictory messaging that is mostly on the Republican side that says Section 230 is simultaneously something that tech companies are violating by not being quote unquote neutral.
--:-- Sean Rameswaram: And something that's allowing tech companies to not be neutral. And that's why we need to reform the law.
--:-- Addie Robertson: So how does it go when Mark Zuckerberg testifies before Congress? So obviously, Mark Zuckerberg is going to say we're a neutral platform. I'm very committed to making sure that Facebook is a platform for all ideas.
--:-- Sean Rameswaram: That is a very important founding principle of what we do. And that is something that as long as I'm running the company, I'm going to be committed to making sure is the case.
--:-- Addie Robertson: And from there, nothing really happens for a while. But then over the next couple of years, the more that tech companies end up on the opposite side of fights with mostly President Donald Trump, the more Section 230 becomes this sort of boogeyman for anybody who is upset about the idea that social media is biased against conservatives.
--:-- Sean Rameswaram: And the former president plays a huge role in sort of mainstreaming Section 230, right?
--:-- Addie Robertson: Right. So from the beginning, Trump, who is a huge social media user, hates social media companies because he thinks that they rigged their results to make him lose followers or that they don't put positive things about him in Google.
--:-- Sean Rameswaram: Yeah, I think Google has really taken advantage of a lot of people, and I think that's a very serious thing, and it's a very serious charge.
--:-- Addie Robertson: I think what Google and what others are doing, if you look at what's going on at Twitter, if you look at what's going on in Facebook, they better be careful because you can't do that to people.
--:-- Sean Rameswaram: And so he looks for ways to attack them. And this brings him to the idea that he should be able to regulate social media and make it not biased against him by changing Section 230.
--:-- Addie Robertson: This kind of percolates in the background for a while. And then in early 2020, Twitter starts fact-checking his tweets.
--:-- Sean Rameswaram: When the looting starts, the shooting starts. The words of the president. You can see at the top that Twitter took note a short time ago. It flagged that tweet saying this. This tweet violated the Twitter rules about glorifying violence.
--:-- Addie Robertson: However, this is very, very bad. For him. Apparently. Because he signs an executive order that is designed to eliminate bias on social media by making the federal government basically redefine Section 230.
--:-- Sean Rameswaram: They have a shield. They can do what they want. They have a shield. They're not going to have that shield. And it makes Section 230 just this big target for the rest of the year.
--:-- Addie Robertson: And this is like, as a lot of Americans are focusing on, say, a global pandemic or a frightening election situation. What is going on like underneath the surface with politicians, the former president and Section 230?
--:-- Sean Rameswaram: So all of the big things that you talking about play out over social media. And so every time one of those things ends up putting Trump in a fight with mostly Twitter or Facebook Section 230 gets sort of dinged for being somehow related to that.
--:-- Addie Robertson: So by about a month before the election, Trump is just sending out all caps tweets that say, repeal Section 230. Giving a law to them, Section 230. We've given them that power. And you know that can be taken away. That can be taken away.
--:-- Sean Rameswaram: Because he believes that if Twitter takes down his tweet about when the looting starts, the shooting starts, which it didn't, but it kind of restricted it, then he points to this executive order or a bunch of legislative stuff and says, look, we need to take action on this.
--:-- Addie Robertson: And this doesn't end after the election. Right. After the election, it only gets worse. Because Congress puts up this defense bill, the NDAA, and Trump says, okay, well, this thing has to include a repeal of Section 230.
--:-- Sean Rameswaram: And so he vetoes it. And then Congress has to override the veto for this massive bill because Trump decided that he wants to stop Twitter from being biased against him by changing one of the foundational laws of the internet.
--:-- Addie Robertson: It was just a strange thing for him to pick as the hill that he dies on. And of course, he does sort of die. Not only is he overridden for the first time in his presidency by a veto-proof majority in the Senate, but then of course, he does finally leave the executive office.
--:-- Sean Rameswaram: Is someone going to pick up this 230 fight for him in the GOP?
--:-- Addie Robertson: So Senator Josh Hawley has put forward a bunch of bills even before the executive order that were aimed at enforcing this idea of neutrality. And there have also been bills brought up by, among others, Lindsey Graham.
--:-- Sean Rameswaram: So they're definitely still going to be involved in this fight. It's interesting, right, because this is sort of thought of as this wildly partisan fight. But Democrats would like to see reform, too.
--:-- Addie Robertson: Yes. Biden. You know, Section 230 should be revoked immediately. Should be revoked, number one, for Zuckerberg and other platforms. That's a pretty foundational law of the modern platform-based internet.
--:-- Sean Rameswaram: Exactly right. And it should be revoked. What do Democrats want to do?
--:-- Addie Robertson: So yeah, last Friday, a group of lawmakers, including Amy Klobuchar and Mark Warner, introduced what's called the Safe Tech Act.
--:-- Sean Rameswaram: What we wanted to try to draw up was a carefully tailored reform of Section 230 that didn't go at the underlying debate about speech.
--:-- Addie Robertson: And this feels like something that could end up being a blueprint for how Democrats push for 230 change.
--:-- Sean Rameswaram: So this rule is, if you read between the lines, based on a few kind of big cases where it seems like Section 230 has failed the Internet.
--:-- Addie Robertson: So, for example, it carves out rules saying, okay, Section 230 doesn't apply to wrongful death suits, which has been an issue because when, say, guns are sold online, platforms like Arms List have used Section 230 to say, well, we're not responsible for this, we're just the platform providing this service for people to sell weapons.
--:-- Sean Rameswaram: The same goes for harassment. If you have been harassed so often from one of these platforms and you're able to get injunctive relief, Section 230 should not preclude it.
--:-- Addie Robertson: There is human rights, which is aimed at the genocide of Myanmar and making it possible for, say, people to sue Facebook. We wanted to make sure that civil rights laws applied and that Section 230 did not prevent that.
--:-- Sean Rameswaram: And we wanted to make sure that the Alien Tort Act, so that if someone in Rohingya could show cause under the Alien Tort Act, for example, that Section 230 would not protect.
--:-- Addie Robertson: And it's just sort of a laundry list of largely pretty valid complaints that people have against big social media sites. It's an attempt to carve those things out of Section 230.
--:-- Sean Rameswaram: So it sounds like if there are changes to Section 230, they might not be sort of vast reimagining changes, but more sort of smaller piecemeal tweaks?
--:-- Addie Robertson: This is the problem is that it's really hard to tell what is a vast change to Section 230. Because a lot of what Section 230 says and does is, look, if you're running a website, you don't have to worry about a bunch of potential hazard for user-generated content, no matter what it is.
--:-- Sean Rameswaram: Because anybody can post anything on the internet. You can post harassment on a knitting forum as easily as you can on Facebook or some kind of gossip site.
--:-- Addie Robertson: So really, the risk when you do something like carve out harassment or any other policy section from 230 is you put all sites at risk if someone uses them for that thing and they don't catch it.
--:-- Sean Rameswaram: Like the difficult thing with Section 230 is always trying to find ways to avoid collateral damage that takes down well-meaning smaller sites.
--:-- Addie Robertson: And it's really hard to tell if the new bill and really any bill managed to thread that needle.
--:-- Sean Rameswaram: I remember, you know, when I first heard about Section 230, it was in the context of it being some sort of pillar of the internet, this sort of flawless regulation that created this thing that has become so essential to our lives.
--:-- Addie Robertson: It sounds like from everything that's going on right now and even in the past couple of years, that's changed at the very least, right? There's more of a willingness to re-examine it and to think about how it could work better for all parties.
--:-- Sean Rameswaram: A lot of tech optimism has faded over the last decade. A lot of optimism about what the internet was capable of and what people being in touch with each other at a large scale meant.
--:-- Addie Robertson: And the more ugly things that people point out on the internet, the more it seems like the law that created the internet is actually a bad thing.
--:-- Sean Rameswaram: So it's really not that surprising. But it is a little bit of a red flag that you should probably be careful when you're tinkering with this thing because its effects are really hard to predict.
--:-- Addie Robertson: Addie Robertson is a senior reporter at The Verge. You can find her reporting on Section 230 at TheVerge.com. Goodbye. Thank you.
