Section 230

Long ago but not so far away, Cornell University used to host an annual conference first named Computer Policy and Law and later renamed (working together with Educause) Institute for Computer Policy and Law, started by Steve Worona and Margie Hodges-Shaw. I had the privilege of working with it for about 15 years. In that time, Steve McDonald unfailingly offered a seminal session on internet liability. Since President Trump has brought the issue of Section 230 front and center of our attention, I have thought of Steve every time I read about it again now. Expertly, he would take us through the history of Anglo-American law from common carrier through publishers to the cases, mainly Cubby, Inc. v. CompuServe Inc. and Stratton Oakmont, Inc. v. Prodigy Services Co. that brought us to the instantiation of Section 230 in the Communications Decency Act of 1996.

I have followed but not fully analyzed the many pronouncements that have recently emerged in the wake of President Trump’s fury. President-elect Biden rashly suggested that it be repealed. (Rash, because that is not a well-thought-through position and should not be accepted reflexively.) I am not sure I can fully capture exactly what Trump wants a revised Section 230 to say, but of course we all know that the goal is for him to be able to say whatever he wants no matter what or when. Right-wingers pile on with the claim that social networking sites suppress their speech. And when I was the director of IT Policy at Cornell, I can attest to the many young men and women, but mostly women, who sat in my office (and whose parents often called, too) completely flummoxed that a law kept them bringing a claim against repulsive gossip sites such as Juicy Campus and CollegeABC.

About a week now after both Twitter and Facebook have barred the president from using their services, we learn that misinformation on the internet has been reduced significantly. I don’t know about you, but I breathed a big sigh of relief when I read that article. I know it will be temporary. Not unlike cybersecurity, we will likely be playing a game of whack-a-mole with new sites that will inevitably crop up. The “dark net” will probably get darker, and tracking capabilities to find the real people behind remarks will become more opaque. The issue of what the law can do, or not, or should do, how and in what ways is clearly not off the table. We will and must come back to that issue.

I repeat, I have not thought through this issue entirely yet. I do plan on incorporating into the class I am teaching at Cornell this semester. I look forward to the students and our simulated product management experience to teach me more about this important point. In the name of conversation, I would like to throw an idea or two out just to gather more thought. Here are some straw men to swat and questions with which to swat them:

• What if federal law, i.e. a revised Section 230, let’s say, assumed all of the existing liabilities and immunities for print media?
• Is the internet really any different than print media (or is it Mark Zuckerberg who does not want to assume the administrative burden that even this limited liability would create?)
• What if the Biden administration reclassifies the internet as a utility (see last week’s post in which I advocate for that shift), which assumes more regulation than its current posture under the label “information service,” including as a common carrier, and the FCC and the courts, inevitably, have to settle the question of the automatic conflict that raises between that classification and immunity under Section 230?
• N.B. Perhaps I missed something, but in the time that the Obama administration reclassified the internet as a utility before President Trump had FCC chairman Pai switch it back, but I don’t remember this issue coming up. Maybe I am mistaken, but isn’t there a potential conflict?
• Okay, let’s go with President-elect Biden’s idea just for a minute -- let’s repeal it!
• Are we willing to accept the jostling in the courts of what this repeal would bring about? It might be a longer, more interesting and yet more tortured route to get to the same place that the first straw man question posed, or not, depending on whether someone can make a compelling case that this issue disproves the Law of the Horse -- that technology really is special and deserves law separate and distinct from what exists already in physical space.

It is really fun to revisit, as Steve would say, old wine in new bottles! Inside Higher Ed no longer allows for comments, so I invite you to jump over to my Facebook site to offer your thoughts!