Section 230: The Cornerstone of Internet Freedom

by on August 18, 2009 · 34 comments

Jonathan Frieden (who runs the e-commerce law blog) has a nice, pithy summary of Section 230:

If the “essential published content” is willingly provided by a third-party, the interactive computer service provider publishing that content enjoys the full immunity afforded by Section 230.

Amen, brother! I noted Eric Goldman’s excellent outline about Section 230 back in June. As Adam has noted, Section 230 is about more than just protecting online intermediaries bottom line or even about freeing them to provide the content and services we all take for granted.

Section 230 is the very cornerstone of Internet Freedom, the law that makes possible Robert Nozick’s “framework for utopias”: Online communities (“utopias”) can flourish in their infinite variety only because those who build, host or enable access to such communities (social network operators, search engines, aggregators, etc.) do not have to worry about legal liability for user-generated content. The fundamental difference between Web 1.0 and Web 2.0 lies in the movement of online speech away from individual websites where the speaker was operator to online speech platforms where the potential number of speakers is essentially unlimited. This ongoing shift makes Section 230 more important than ever.

Never before has it been so easy for users to “vote with their feet,” sorting themselves into communities of their own choosing, and not since the the 1890 Census declared the American frontier “closed” has it been been so easy for the individual to start entirely new communities if they don’t like their current options.

  • Mark Plimpton

    Section 230 of what?

  • http://blurringborders.com Kevin D

    As much as I have libertarian tendencies, I don't understand why you guys rail against speculative net neutrality laws, but are happy to support this law.

    I have libertarian tendencies because I want to expand liberty – whether through lack of government involvement or through well-structured government involvement. Obviously government, for a variety of reasons you know well, often runs the risk of stepping on the toes of liberty; but if Section 230 shows anything, it is that government mandates can support liberty, as well.

  • http://www.techliberation.com Adam Thierer

    Kevin, thanks for your comment. Perhaps I can explain why we see these two things so differently.

    Sec. 230 curtails government coercion by limiting the potential punishing legal liability that would flow from an open-ended assignment of liability to Internet intermediaries for problems not of their making. Libertarians generally oppose the idea of “deputizing the middleman” or blaming intermediaries for problems created by others. Moreover, Sec. 230 is not a “mandate” that requires the assertion of raw government coercion or that would allow bureaucrats to reorder or micromanage online markets.

    Net neutrality regulation, by contrast, is a true regulatory mandate, and it would most definitely allow bureaucrats to meddle with online markets. By its very nature it requires that regulators oversee private network management decisions, which opens the door to destructive command-and-control infrastructure regulation, massive bureaucratic waste, regulatory agency growth, and corporate rent-seeking, and even price controls, as we see now. Moreover, such economic regulation typically opens the door to content regulation. Again, Sec. 230 does NONE of these things.

    So, even if we might agree on the general principle behind network neutrality, we would not want it mandated by law for those reasons. It just has too many potential downsides and could be quite destructive in practice. Sec. 230, on the other hand, fosters a vibrant online environment for both speech and commerce without such regulatory baggage.

  • http://www.techliberation.com Adam Thierer

    Section 230 is the sometimes-forgotten portion of the Communications Decency Act of 1996 that shielded Internet Service Providers (ISP) from liability for information posted or published on their systems by users or other third parties. It was enshrined into law with the passage of the historic Telecommunications Act of 1996. Importantly, even though the provisions of the CDA seeking to regulate “indecent” speech on the Internet were struck down as unconstitutional, Sec. 230 was left untouched.

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    Section 230 is not a government mandate. It's essentially “Tort Reform for the Internet”—getting the government (i.e., the courts) out of the way by setting the default for online interactions to “no tort liability for the intermediary.” Of course, parties can contract around that but setting a default that allows for maximum creativity and innovation by removing government as an obstacle has been critical for the flourishing of the Internet.

  • http://blurringborders.com Kevin D

    @Berin & Adam – I stand by Sec. 230 being a government mandate, as understood as an official commission or order. A mandate is not defined by bureaucratic meddling. It is defined by the ability to compel action (or, in this case, inaction). The would-be plaintiffs in cases thrown out due to Sec. 230 most certainly feel like they were mandated to do something: not sue!

    But, really, that's just semantics.

    On your extended point, Adam, I'm in full agreement. I, too, am fearful of the unintended consequences of NN laws. While I think there is a strong case against NN laws, my more general point was that properly structured legislation for the 'net can be written, and too often I feel like that is missing in the “regulation must equal bad” discussions (on an otherwise thoughtful blog).

    Perhaps the task, then, is to think of ways in which the 'net can be made even more robust than Tim points out in his paper on the topic. I'm not nearly clever enough to do so, though… : )

  • MikeRT

    In the 19th century, we got the Midwest. Today, we have Digg and 4chan. I'm having a hard time seeing the progress here…

  • http://www.openmarket.org/author/alex-harris/ AlexHarris

    Tomorrow, Congress passes a new law: If you are offended by the clothing of anyone you see, you can sue them. If you prove by a preponderance of the evidence that you were subjectively offended – a threshold the statute indicates can be met with a sworn affidavit – you get $10,000 in damages from them and they get one year of jail.

    The day after tomorrow, Congress passes another law, repealing that one: No longer can you sue over offensive clothing.

    Is the second law a “government mandate”? Not if that word is to have any meaning separate from “act of Congress.” And it probably should.

  • http://blurringborders.com Kevin D

    Perhaps my lack of legal training is leading me to miss something, but I do see an “act of Congress” as one form of “government mandate.” As long as the government maintains the legal monopoly on the use of force, a Congressional Act is a government mandate.

  • http://blurringborders.com Kevin Donovan

    Perhaps my lack of legal training is leading me to miss something, but I do see an “act of Congress” as one form of “government mandate.” As long as the government maintains the legal monopoly on the use of force, a Congressional Act is a government mandate.

  • http://www.openmarket.org/author/alex-harris/ AlexHarris

    Tomorrow, Congress passes a new law: If you are offended by the clothing of anyone you see, you can sue them. If you prove by a preponderance of the evidence that you were subjectively offended – a threshold the statute indicates can be met with a sworn affidavit – you get $10,000 in damages from them and they get one year of jail.

    The day after tomorrow, Congress passes another law, repealing that one: No longer can you sue over offensive clothing.

    Is the second law a “government mandate”? Not if that term is to have any meaning separate from “act of Congress.”

  • http://blurringborders.com Kevin Donovan

    Perhaps my lack of legal training is leading me to miss something, but I do see an “act of Congress” as one form of “government mandate.” As long as the government maintains the legal monopoly on the use of force, a Congressional Act is a government mandate.

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