Long ago in internet time, way back in the 1990s, Congress passed the Communications Decency Act (CDA). A key feature of the CDA is Section 230 of the statute. In essence, Section 230 generally creates immunity for internet service providers (ISPs) with respect to third-party content posted on their sites. Congress desired a strong and robust commercial internet that would be good for the economy. Congress did not believe that the commercial internet would thrive if ISPs were saddled with the incredible cost and burden of monitoring the content on their sites and having the tremendous task of deciding content that could remain and content that should be removed from their sites.
As we know, the commercial internet has boomed since the early days of the 1990s. And social media companies have been created and have become dominant forces in society and the economy perhaps in part because of the freedom granted to them by Section 230 of the CDA.
But while people have enjoyed using social media for many functions and aspects of their daily lives, there have been some growing concerns about the grant of immunity given to ISPs under Section 230. And in some court cases, Section 230 immunity has been chipped away.
Social Media and Section 230
Along the way, social media companies have been criticized for some privacy and security lapses. And there have been strong concerns relating to third-party content posted on social media platforms that arose out of the 2016 Presidential campaign. There have been reports that all sorts of false material was posted on social media sites relating to the campaign, and that Russia sought to influence the election through social media.
Soon after the 2016 election, Mark Zuckerberg, the CEO of Facebook, dismissed suggestions that Facebook could have been used as a vehicle to improperly influence the election. But since then, he has expressed greater awareness about how content posted on social media can be used to promote false information for illegitimate purposes.
Indeed, a couple months ago, Zuckerberg actually called on regulators to have a “more active role” to put rules in place that govern the internet. In fact, he wrote in an article for the Washington Post that there should be a “standardized approach” guiding internet companies on how to remove content to help keep those companies “accountable.” Zuckerberg went on to say: “By updating the rules for the internet, we can preserve what’s best about it – the freedom for people to express themselves and for entrepreneurs to build new things – while also protecting society from the broader harms.” Zuckerberg also called for new legislation to safeguard elections, with new rules directed at online political advertising that “reflect the reality of the threats faced by social media companies.”
Self-Regulated Social Media?
Once upon a time, companies wanted to be as unfettered from regulation as possible on the internet. Section 230 of the CDA served that purpose. And at the outset, the courts broadly interpreted the immunity provided by that part of the statute. But the tide turned a bit in the courts over time, and public concern has grown about false and polarizing content posted on social media sites.
It seems that at least Facebook, according to the comments of its CEO, does not want to be in the business of calling balls and strikes as far as content to keep or remove from its site. That in fact was the purpose of Section 230 of the CDA — to make sure the internet service providers would not be burdened with such decisions; under Section 230, the idea was that ISPs would not have to monitor third-party content much if at all.
Given the current context that social media companies likely will have to engage in some monitoring to remove wrongful content, Zuckerberg is calling for federal regulatory guidance so that companies like his will know exactly what to do and not do as far as posted third-party content. Perhaps other social media companies share Zuckerberg’s thinking. We will have to see if that is the case as we go forward.
While Zuckerberg’s idea for greater regulation may seem like a good idea so that there can be guidance and uniformity, as Mr. Zuckerberg himself learned when he recently testified on The Hill, some members of Congress do not even understand how the internet works. So, to ask for guidance from them may be like seeking vision from the blind. Also, the internet is an ever-changing dynamic beast; any set of rules devised in a given moment soon become stale.
Social media companies find themselves in a tricky situation. They still have Section 230 of the CDA, and they do not want to be in the business of constantly calling balls and strikes as far as content posted on their sites. But they also want to make sure to protect the privacy and security of their users and to ensure that the content on their sites is legitimate and is not intended to wrongly influence matters of great public concern like our elections. Social media companies must work creatively and hard over time to balance the competing interests of running successful companies while also protecting the integrity of their platforms.
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him atejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.