The Washington PostDemocracy Dies in Darkness

The law that made the Internet what it is today

Few anticipated the consequences of the Communications Decency Act of 1996

(REUTERS/Dado Ruvic)
(REUTERS/Dado Ruvic)

Susan Benkelman is director of accountability journalism at the American Press Institute.

More than two decades ago, as members of Congress wrestled with how to build a legal framework around a nascent consumer Internet, few really appreciated the future they were shaping. Lawmakers, and later the Supreme Court, struggled to envision how this new technology would work. A big concern was pornography. Some viewed the Internet like television, and feared that sexual images were going to come blasting out of screens at unwitting children. Others considered it more analogous to the telephone, a conduit or pipe agnostic to the content passing through it.

As we now know, it was neither. The Internet, it turned out, is us — a user-generated mirror that reflects our best and worst, our family photos, pet videos, unsolicited opinions, and stories of successes and setbacks. But lately that mirror has tended to distort and magnify, as the Internet has become host to a flood of misinformation, hate speech, conspiracies, nefarious foreign meddling and even terrorist propaganda.

For the Internet we have today, Jeff Kosseff writes in “The 26 Words That Created the Internet,” we can thank Section 230 of the Communications Decency Act of 1996, which protects platforms such as Facebook, Twitter and YouTube from legal liability for material posted on their sites by third parties. Kosseff argues that these companies, whose business models depend on user content, wouldn’t have prospered, and may not even have existed, had they been afraid of being sued whenever anyone posted something defamatory on their platforms.

The decency act, part of a larger telecommunications overhaul that year, received a lot of media attention because it sought to criminalize transmission of indecent material online (hence the legislation’s name). The Supreme Court struck down that element on First Amendment grounds in 1997. Section 230, though, remains not only standing but, as Kosseff documents in detail, has been strengthened by years of court decisions upholding the liability shield, even in lawsuits brought by people whose careers, businesses and lives were ruined by what someone posted about them on the Web.

Kosseff’s book is timely, given the intensifying debate about whether Congress should find ways to hold Internet companies accountable for third-party speech that harms individuals and society as a whole. But the book’s value goes beyond timing. The author’s background as a journalist and his current roles as a professor and a lawyer enable him to produce an engaging narrative that explains the law clearly and compels us to think about speech in the modern age and who is responsible when it is harmful.

As Kosseff tells it, not all lawmakers in those early days were clueless about the future of the Internet. In describing the origins of Section 230, he details the work of its creators: then-Reps. Chris Cox (R-Calif.) and Ron Wyden (D-Ore.), who now serves in the Senate. A pair of court cases that influenced the lawmakers’ thinking gave Internet companies an incentive not to moderate users’ speech — if they did, they would be treated like publishers who could be held responsible for their content.

That perverse incentive, along with the lawmakers’ desire to nurture an emerging industry, led Cox and Wyden to include a “Good Samaritan” provision that said the platforms would not be treated like a publisher or speaker responsible for policing third-party content. It was an implicit bargain that to this day Wyden characterizes as a shield and a sword: The companies get the shield of immunity but aren’t punished if they use the sword.

Today, it’s not clear that tech companies have held up their end of the deal. For one thing, the bargain in Section 230 was implicit, and companies tend to read laws literally. For another, the players have changed since then. As Kosseff points out, Facebook chief executive Mark Zuckerberg was 11 years old when the legislation was written in 1995. The main Internet companies back then were Prodigy, CompuServe and America Online.

Today’s giant companies have been taking action to suppress damaging content — such as blocking misleading anti-vaccination posts and removing accounts that promote white nationalism — but there is a growing consensus that they are not doing enough, and lawmakers are watching. To use Wyden’s metaphor, Congress could weaken the shield if the platforms don’t wield their sword more aggressively.

Other countries, including the United Kingdom, have proposed or initiated crackdowns on the companies for damaging content posted by third parties. Such an effort in the United States, though, would trigger a fierce debate given the nation’s historic preference for free speech, a characteristic Kosseff describes as American exceptionalism. It’s no coincidence, he argues, that the United States is home to many of the big companies that rely on user-generated content.

The Section 230 question is also starting to collide with a larger debate about whether the companies hold too much power in society and in the economy. Some conservatives, such as Sen. Josh Hawley (R-Mo.), have accused the tech companies of amplifying liberal voices and suppressing conservative ones, implying that Section 230’s protections might be in jeopardy. House Speaker Nancy Pelosi (D-Calif.) told Recode recently that Section 230 was a “gift” to the companies and that its removal is “not out of the question.”

Kosseff thinks the law could be adjusted in some places but, like many Internet law scholars, he says an outright repeal would be overkill. His book includes a persuasive argument that the user-generated Internet enabled by Section 230 gives oppressed groups a voice and the ability to organize. He cites the #MeToo movement as an example.

To get it right, lawmakers will need to assess as best they can how the Internet will evolve, the same problem they struggled with in the 1990s. Even Wyden acknowledged to Kosseff that although he knew that Section 230 was going to be important, he “never thought that its reach would be this dramatic.” Nor could he possibly have foreseen platforms whose algorithms would help surface and amplify conspiracies, fake images and news stories, and even depictions of violence online, creating the distorted-mirror effect that is so prevalent and troubling today.

Now something needs to change, whether it is the law or the companies’ behavior. Section 230 may have created the mirror of society that the Internet represents. But the tech companies now hold it in their hands, which means they may want to move more aggressively to remove its distortions — before the government tries to do it for them.

By Jeff Kosseff

Cornell. 313 pp. $26.95