Revisiting Section 230

The two cases that recently shone a spotlight on Section 230

Gonzalez v. Google

The case of Gonzalez v. Google involved the family of Nohemi Gonzalez, who alleged that Google was complicit in the November 2015 ISIS attack in Paris that killed Ms. Gonzalez and 129 others. The family claimed that Google's service, YouTube, was used by ISIS to recruit and radicalize combatants, which violated the Anti-Terrorism Act (ATA) and the Justice Against Sponsors of Terrorism Act (JASTA). They also alleged that YouTube provided material support to terrorists by selling advertising on ISIS videos and sharing revenue with the group.

Twitter v. Taamneh

In the case of Twitter v. Taamneh, the family of Nawras Alassaf, who was killed in a 2017 ISIS attack in Istanbul, took a different approach to assigning culpability. Instead, they alleged that social media companies such as Twitter, Google, and Facebook (now Meta Platforms) aided and abetted ISIS' activity by allowing the distribution of their materials without editorial supervision, in violation of the Anti-Terrorism Act (ATA) and the Justice Against Sponsors of Terrorism Act (JASTA).

What is Section 230?

Section 230 of the 1996 Communications Decency Act (CDA) is a United States law that provides immunity to online platforms from liability for content posted by third-party users. The law was enacted in 1996 and was intended to promote the growth of the internet by providing legal protections for online platforms that allowed users to post and share content.

Under Section 230, online platforms are not considered publishers or speakers of third-party content. They are, therefore, not held liable for defamation, privacy violations, or other harms caused by user-generated content. This immunity has been credited with allowing the growth of the internet and the development of social media platforms, search engines, and other online services. Specifically, Section 230 provides social media platforms like Facebook, YouTube, and Twitter the following:

• The power to decide what content to keep online or take down, without needing permission from the government
• A shield against liability for what users post online; thus, they can't be sued over libelous speech and extremist content.

However, Section 230 has come under scrutiny in recent years due to concerns about the spread of harmful content on online platforms, such as hate speech, misinformation, and illegal activities. Critics argue that the immunity provided by Section 230 has allowed for the free propagation of harmful content and that the law should be reformed to hold platforms more responsible for the content they host.

The SAFE TECH Act was proposed to reform Section 230 by removing immunity for certain types of content, such as paid content or content that contributes to civil rights violations, harassment, or stalking. It would also hold platforms accountable for the algorithmic recommendation of harmful content and the promotion of extreme or dangerous content. However, there are ongoing debates about how the law should be reformed to address these concerns.

The SAFE TECH Act as a proposed reform for Section 230

If passed into law, the SAFE TECH Act could have several implications for the average internet user and the Big Tech companies. These include increased accountability for online platforms, increased transparency around content moderation policies and practices, improved user protections, and potential impacts on free speech.

The Act includes the following provisions:

• Removing Section 230 immunity for certain types of content, such as paid content or content that contributes to civil rights violations, harassment, or stalking. This ensures that platforms cannot continue profiting from content targeting vulnerable consumers through ads enabling fraud and scams.
• Holding platforms accountable for algorithmic recommendations of harmful content and the promotion of extreme or dangerous content. This way, families of decedents that have suffered wrongful death can bring suits against platforms where they may have directly contributed to the loss of life.
• Providing a private right of action for users who have been harmed by online platforms that violate laws that address stalking/cyber-stalking or harassment and intimidation on the basis of protected classes.
• Directing the Federal Trade Commission (FTC) to create rules requiring platforms to take down illegal or harmful content.
• Establishing a Digital Protection Agency to regulate and oversee online platforms.
• Allowing victims of platform-enabled human rights violations abroad to seek redress in U.S. courts against U.S.-based platforms under the Alien Tort Claims Act.

While the SAFE TECH Act has yet to be passed into law, debates are ongoing among policymakers and stakeholders about its potential impacts on online speech, innovation, and regulation. For example, some have expressed concern that the increased liability for online platforms could lead to over-moderation and censorship of online speech (in direct violation of the First Amendment). In contrast, others argue that the Act is necessary to hold online platforms accountable for harmful content and conduct.

What does the SAFE TECH Act mean for you as an internet user?

The SAFE TECH Act, if passed into law, could have several implications for the average internet user, including:

• Increased accountability for online platforms: The Act seeks to hold online platforms accountable for harmful content and conduct on their platforms, which could lead to more significant efforts by these platforms to moderate and remove harmful content. 
• Increased transparency: The Act includes provisions requiring platforms to disclose their content moderation policies and practices, which could lead to greater transparency around how platforms decide what content is allowed on their sites.
• Improved user protections: The Act includes provisions that give users greater legal recourse if they are harmed by online platforms, such as a private right of action for users who have been harmed by online platforms that violate the law.
• Potential impacts on free speech: Critics of the SAFE TECH Act have expressed concern that the increased liability for online platforms could lead to over-moderation and censorship of online speech.

Overall, the impact of the SAFE TECH Act on the average online user will depend on how it is implemented and enforced, as well as how online platforms respond to the increased accountability and transparency requirements.