Back in 1996, then-Reps. Ron Wyden (D-Ore.) and Christopher Cox (R-Calif.) added 26 words to the Communications Decency Act that have, in the 18 years that followed, perhaps done more than any other law to shape how the Internet has evolved in the United States. Called Section 230, the provision said that Web sites that host users' writings, videos, and more aren't held liable as publishers of that content. That obscure provision is widely credited with allowing the Internet economy and online communications to flourish.
Now, a new generation of Internet-powered yet offline companies is invoking the spirit of Section 230 to argue that, as mere platforms for the activities of users, they should have the same operational freedom enjoyed by first-generation Internet companies. The room-rental service Airbnb, for example, has been described as less of a hotel chain than a online matchmaker. The car-hailing service Uber has argued that it simply uses the Internet to pair drivers and riders. The television watching service Aereo pitches itself as a provider of networked equipment for users to do with what they will. But it hasn't always worked. California regulators called Uber's argument "creative" before brushing it off. Last month, the Supreme Court effectively shut down Aereo's business model.
Are these new online platforms stretching the spirit of Section 230 too far? Or are regulators and the courts failing to see its relevance in an age when what the law calls an "interactive computer service" isn't as clear-cut as it once was? I asked Wyden, now a senator.
What do you make of Uber's argument that it shouldn't be regulated as a transportation provider because it's instead just digitally connecting cars and drivers?
I've thought a lot about Uber, and one of the things that's been learned over this 20-year odyssey is that you should not try to force old legal regulatory or tax regimes on fundamentally new innovations. That does not mean that there should be no regulation at all. But all too often the machinery of government has been used to protect old business models against innovation. That is what I have tried resolutely to push back against.
From the beginning, what we fought so aggressively for is to make sure that the law would keep up with innovation. And if we hadn't protected Internet providers and services from an endless barrage of liability suits, we would have clobbered the 'Net in its crib. We have been told repeatedly that [without the law] people would have said, "Why would we invest in the social media? My God, if we invest in one of these Web sites, one of these blogs, we're going to be held liable for something that was posted by one of the millions of people that posted on it."
Twitter, Facebook, YouTube, Reddit wouldn't have had the legal certainty they needed to get out of the gate. It basically facilitated an explosion of political and creative expression.
That was how we started. Then, again with Congressman Cox, I wrote the Internet Tax Freedom law to protect the Internet from the old approach of discriminatory taxation. We took that approach as a springboard to drive the debate about the next array of services that will improve the way we communicate, how we get our health care, how we learn, and how we travel.
What, though, about the idea that there's just more possible harm when companies exist as much offline as online? An offensive blog post can be pulled down. But if an Uber ride goes wrong, the damage is done.
I want to be clear, I'm not saying that there should be no government, no oversight, no regulation. What I want to make sure of is that various kind of government policies intended for 20th century services don't stifle 21st century innovation.
I tell the story of how, when I was promoting policies for Internet radio, I was having discussions in Congress with members. [In 2007, Wyden was the co-author of the Internet Radio Equality Act.] People used to thing of traditional radio, of the gigantic box that they brought in with them to lunch so that they could listen to the ballgame while they ate their soup. When I talked about Internet radio, people said, "What's that?" And I said, "guys, we can now listen to the radio on our computers." It's just that you need smarter, more tailored policies that make sense for this century.
What's your take on the Supreme Court's ruling that Aereo was violating copyright law by enabling users to watch protected broadcast television?
There's an interesting aspect of the Communications Decency Act. At the time, there were two approaches that were advanced in the House and in the Senate. There were Congressman Cox's and mine, and there was the 20th century approach of a blanket censorship regime. Everyone huffed and puffed and both approaches got into the bill. But the Supreme Court struck down the 20th century approach and upheld ours. We were thrilled. [Note: The bulk of the CDA, which applied rules on "indecency" written for television and radio to the Internet, was ruled unconstitutional by the Supreme Court in 1997.]
On Aereo, it won't surprise you that I wasn't a big fan of this Supreme Court decision. It's not rocket science: It's going to discourage innovation.
I want to ask you about the politics. Some on the right -- Senator Marco Rubio, Grover Norquist -- are floating the idea that crackdowns on, say, Uber are going to open a new generation's eyes to the fact that they're opposed to government regulation after all.
Politicians protecting incumbents against disruptive technologies is a bad bipartisan tradition.
This interview has been edited and condensed for clarity.