Biden comments reignite debate over Section 230 rule protecting online platforms

As lawmakers consider changes, corporations and social platforms offer business reasons to have it removed or reinforced.

Debate over Section 230 of the Communications Decency Act has raged since former Vice President Joe Biden took issue with the rule in an interview with The New York Times last month.

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The newspaper’s editorial board sat down with each Democratic presidential candidate in January and Biden said Section 230, which has become a foundational principle of the internet since it was instituted in 1996 as part of the Telecommunications Act, should be revoked.

He made the comments during a discussion about his campaign’s dispute with Facebook and the company’s CEO, Mark Zuckerberg.

The Biden campaign sent a letter to Facebook last year asking that the social media site take down an advertisement that Biden believes contained falsehoods.

Facebook refused to take the ad down and the company’s head of global elections policy, Katie Harbath, wrote a statement saying that although the ad contained false information, it did not violate the company’s policy. Since then, Facebook has defended itself by saying ads with wrong information and misleading content were “part of the political conversation.” Zuckerberg later said people “can make their own judgments.”

Biden said the company should be liable for promoting falsehoods in the same way a newspaper like The New York Times would.

“[Section 230] should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy. You guys still have editors. I’m sitting with them. Not a joke. There is no editorial impact at all on Facebook. None. None whatsoever. It’s irresponsible. It’s totally irresponsible,” he said.

When asked whether Zuckerberg should be personally liable, Biden said “he should be submitted to civil liability and his company to civil liability, just like you would be here at The New York Times.”

The comments from Biden have coincided with significant efforts by major corporations to scrap Section 230 for a litany of reasons, while opponents say its removal could irrevocably change the internet for the worse.

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Websites like Facebook, Google and Wikipedia rely on Section 230 to protect them from liability in case one of their uses writes something defamatory or commits a crime through their platform.

“Wikipedia wouldn’t exist but for Section 230. You could have an online encyclopedia but you couldn’t have an online encyclopedia that anyone could edit. Not unless you had all the lawyers in the world and a content moderation team that’s the size of a country. Wikipedia and all of the Wikimedia projects rely upon it in order to exist in the way that we do,” said Wikimedia Foundations senior public policy manager Sherwin Siy.

“People have a tendency to talk about it like it’s an immunity, but it’s not. It’s a separation in between the platform and it’s users. Someone edits Wikipedia every six seconds. People do dumb things but they also do defamatory things, and if that happens, if Wikipedia is going to be held liable, we can’t operate that way.”

Siy went on to say that much of the conversation about Section 230 has very little to actually do with the rule. People have every right to be worried about how the internet is now organized but changing Section 230 would do little to address the core concerns many people have, he said.

Internet users are “worried about hate speech, harassment, doxxing and disclosures of private information, data breaches, disinformation, child sexual abuse material,” as well as other issues related to content moderation, but changes to Section 230 may have little to no effect on any of those issues, Siy said.

“Hate speech is, in the US, mostly legal. Section 230 is about making sure there is a separation between the user and the platform. Getting rid of Section 230 wouldn’t do a thing for hate speech, but it would make Wikipedia liable for potentially defamation if one of our users defamed somebody and we didnt take care to look for it, find it and deal with it in some way, because defamation is illegal,” Siy added. “If somebody uses a platform for hate speech, and Section 230 goes away, that doesn’t really change much because you can’t even sue the initial speaker.”

The rule was created primarily so that platforms relying on user-generated content could exist without the fear of litigation but it does not provide full immunity.

Companies can still be deemed liable under the law for the removal of illegal content that violates intellectual property and copyright laws or federal and state sex trafficking laws.

According to Attila Tomaschek, data privacy advocate at ProPrivacy.com, Section 230 is an instrumental force in the overall development of a free and open internet and has played a significant role in allowing Big Tech companies to flourish and innovate into massive platforms for public discourse while becoming truly disruptive forces that were able to fundamentally transform the global economy.

Tomaschek added that Section 230 was essential to preserving the right to free speech, free expression online and innovation. But the irony now is that members of both parties are attacking Section 230 for opposing reasons.

Biden and other Democratic Senators have expressed concerns about the increase in hate speech and the flood of unchecked disinformation making their way onto these digital platforms, while Republicans want tech companies to be restricted from moderating any speech for fear that it would curb conservative content.

Each side has put forth a number of proposals but none have gained any traction, and while there may be minor changes to the rule in the future concerning specific topics like sex trafficking, it is more likely Section 230 will be here to stay.

One of the most contentious aspects of the debate over the rule concerns corporations and the differing business reasons companies either want Section 230 removed or want it reinforced.

“The fight being put up by large, established, and long venerable companies like Disney, Marriott, and IBM to deflate Section 230 and remove or at least significantly diminish the protections it provides is quite multifaceted and driven by each company’s individual motives,” Tomaschek said.

“Ultimately, however, what their individual grievances against 230 all seem to show is that the fight is essentially between old, hulking companies that have failed to adapt to the rapidly changing landscape and relatively new-on-the-scene Big Tech giants that were able to offer innovative services that consumers were quick and eager to adopt.”

The New York Times obtained a handout passed around Washington, D.C., by Disney lobbyists last year that made a number of claims about Section 230 and what was at stake by leaving it in place. The handout asserted that there were people who had concerns about Section 230 in relation to “illegal opioid sales, spread of terrorist propaganda, foreign government election meddling, spread of material and tools that help pedophiles connect.”

The Electronic Frontier Foundation has been at the forefront of the debate over Section 230 and has advocated for it to be strengthened and amended to reflect the current realities of the internet.

EFF Legislative Counsel Ernesto Falcon said it was troubling to have a series of mega corporations talk about what the law should look like for another series of mega corporations.

Echoing Tomaschek’s comments, Falcon said many of these companies had ulterior motives when it comes to Section 230, particularly in industries like hotels and taxis. Major hotels want companies like Airbnb to be liable for people breaking local housing laws and taxi companies want local legislation to affect platforms like Uber and Lyft.

But some of the most interesting debate over Section 230 concerns entertainment, especially for companies like Disney that have been ardent backers of the removal of Section 230.

“What’s interesting about Hollywood in general is that they have long felt that the biggest internet companies have been the source of all their problems in terms of distribution. Namely, issues of piracy and not being able to completely dictate the terms of how you get to watch your shows. When they are no longer able to control how people get content, then it becomes harder to extract the price you expect to be paid for that content,” Falcon said.

“In a lot of ways, they’ve had all sorts of mechanisms, because Section 230 does not shield a copyright claim. They’ve had all sorts of tools that have been made available from Congress to police their content. The fundamental thing that they’ve always wanted since the big companies have existed is for the internet companies to do the work for them.”

Entertainment companies want to save money and avoid having to rifle through the internet taking down content, but tech companies have been reticent to wade into these waters.

The situation gets even murkier with things like music, considering many artists use these free platforms to popularize themselves and their content. Many times, recording companies are at odds with artists who post their songs to YouTube in the hopes that it will go viral.

“The thing that keeps happening in terms of the recording industry is that the left hand and the right hand don’t know what they’re doing sometimes. Lots of times, artists actually rely on the free distribution of their content as a means of generating buzz or getting attention or building a following. Often that gets stifled because the studio who may not know what the artist is doing and will extend take-down notices and block it and ask for things like YouTube to delete the content. But YouTube was partially entitled to that content because the artist is the one who put it up there,” Falcon added.

“So you have a lot of these weird frictions where it is very hard to know without going to court and litigating the question of when something is fair use or when something is unauthorized use. Simply raising the liability of distribution platforms on copyright grounds is not going to result in turning back the clock to when the internet didn’t exist.”