Undoing the Mistake of the Century
Section 230 of the Communications Decency Act was supposed to be a temporary fix. Times up.
I have a confession to make. I was complicit in what may have been the biggest public policy mistake of the last century. I didn’t know it was a mistake at the time. Instead, I am embarrassed to say, like most other Silicon Valley-based tech reporters back then I thought we were doing the right thing, which explains why I inadvertently contributed to the error. My role, which I very much regret, was joining those who passed on self-serving claims from for-profit Internet entrepreneurs and their venture capital backers that in retrospect we should have treated with far more skepticism. It was a classic case of “group think.”
I refer, of course, to the passage of Section 230 of the laughably misnamed Communications Decency Act of 1996, which provides Internet firms with protection from legal liability for third party content published on an “interactive computer service.” The key section reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.
Sadly, the collective failure of our Silicon Valley press corps to recognize this mistake and call it out as it was happening set the stage for a series of interrelated economic and political disasters that have since done great damage to our families, jobs, businesses, economy, politics, and society. Widening global income inequality, the accelerated concentration of economic and political power in the hands of a small circle of unaccountable billionaires, the consequent near complete disenfranchisement of working people, and the regular stream of race-baiting diversions that set powerless groups against one another to keep the whole scam rolling, are all rooted in this one huge public policy mistake made at the dawn of the Internet era.
Section 230 is a “get out of jail free” card for Internet firms. It allows them to get away with, and to profit from, activities which were previously legally sanctionable in both criminal and civil courts. This one paragraph of federal law, simple in construction but mighty in impact, allows Internet firms, but no other types of businesses, to ignore traditional rules developed over decades about corporate accountability, responsibility, and liability. The corporate accountability rules set aside in the case of Internet firms had long governed the legacy publishing industry which, by the way, had always published content created by third parties going all the way back to the very first product of the printing press, the Guttenberg Bible. By carving out a wholesale waiver of corporate responsibility for Internet firms, by allowing them to profit from the publication of hate and trash, we inadvertently created a cadre of irresponsible Internet firms for whom nothing, absolutely nothing, including even the promotion of Nazism, racism, and hate ideologies, was a bridge too far. We really should have seen that one coming.
What we did not understand in 1996 is that by creating a class of for-profit Internet firms that did not have to play by the same accountability rules that applied to all other businesses we gave those firms, which were tiny at the time, a tacit license to profit from unspeakable forms of digital garbage, much of it illegal, and with that license came a huge, unfair advantage in the marketplace. Over time, the once small firms that enjoyed that unfair advantage have grown to dominate market after market. When one fighter in a boxing match is allowed to legally punch below the belt the other fighter doesn’t stand much of a chance of anything other than a groin injury. In this type of environment, the most unscrupulous players win.
It’s important to remember that what became Section 230 was originally pitched as a temporary arrangement. That helps explain why so many tech reporters, myself included, failed at the time to recognize the danger inherent in the proposal. In fact, I think I may have been at the Internet conference in San Francisco, one of the first well-attended Internet business conferences ever held, where the idea that became Section 230 first came up. It happened, as I recall, on a panel circa early 1995 that featured some leaders of Netscape Communications, which had just introduced the first free Internet browser. Someone in the crowd mentioned that some popular Internet bulletin boards (bulletin boards were an early way information was shared on the web), were being deluged with objectionable, illegal, and often pirated content. The question was, how on earth could anyone start or grow an Internet firm — based on the Netscape browser — that allowed or invited public contributions on a large scale and manually guard against such activities? Someone mentioned the analogy of a public kiosk, that we would not fine the owner of a public kiosk on which someone thumbtacked illegal content. We’d simply require the owner of the kiosk to take it down and only if the kiosk owner refused would legal action be appropriate. “We need the same rules for Internet startups,” declared the Netscape executive, “at least for a limited time until we have the tools that let us automate the take down process.” Within a few months, the language for Section 230 was circulating in Washington, D.C., propelled to prominence and rather quickly to final passage by the first few Internet multi-millionaires.
It was that “for a limited period of time” promise that sold me, and caused me to support the idea. Like others, I was worried that without protection Internet firms would never get off the ground and that the web itself would become just another playground for the corporate monopolists who dominated media at the time. The idea was to give start up Internet firms some temporary protection so they could get established. The idea was not to give them a permanent advantage that allowed them to profit from bad behavior for all eternity. But once the law passed, and once so much money started changing hands, it became set in stone.
The solution is obvious. We should go back to the way things were before the Internet existed in terms of legal liabilities. If you publish something, you are responsible for it. Period. “Publishing” means reproducing content so that it can be viewed by the public. If you publish hate speech, you own it. You also own the legal consequences that come with publishing it. I’d make only one exception, for non-profit archiving and reference services, such as the Internet Archive and Wikipedia, that preserve digital history for purposes of research, scholarship, reference purposes, and the historical record.
Holding for-profit Internet firms accountable for what they publish will change those firms. It will cut them down to size and invite more competition. It will force Internet firms to become more responsible. It will also contribute to breaking up the online monopolies that have formed or are now forming as big tech firms presently unaccountable are held accountable. Making Internet firms responsible for what they publish online would bring them down to a more human scale, as the judgment of human beings, not machines, comes to again be more highly valued, just like it was in the days when local newspapers, run by local editors, were a viable business. Hell, making Internet firms accountable for what they publish may even bring back local newspapers and the advertising revenue they require. Once everyone is held accountable for what they publish we will have better publications, better, more reliable sources of information, and a clear mechanism to deter and punish those who traffic in hate, disinformation and garbage.
Unfortunately, President Trump, piqued that accurate labels were suddenly being applied to some of his hateful online rants, recently endorsed the idea of repealing Section 230 as a form of personal vengeance. It’s a case of Trump embracing the right idea but for the wrong reason. The bigger danger is that Democratic lawmakers may think Trump’s support for repealing Section 230 gives them license to oppose this reform and continue raising money from the tiny but wealthy Silicon Valley elite in the online hate business. For that reason, we must find ways to remind our Democratic leaders that, as the old adage has it, even a broken clock is right twice a day. Trump being right on this one issue, for the wrong reason, does not give license to Democratic lawmakers to get it wrong.
The lesson we have learned from this mistake should never be lost. It is a lesson as old as our country. Here it is: we need checks and balances to restrain humankind from its regrettable propensity to acquire, centralize, and abuse power. As Lord Acton presciently put it in the mid-1800's “power tends to corrupt and absolute power corrupts absolutely.” Ensuring that the same rules apply to everyone and that everyone and every business, including those operating “an interactive computer service” for profit are accountable under the same rules, is essential to remove hate speech and disinformation from the Internet, and to restore and then maintain a healthier, more equitable economy and society.
Hal Plotkin is the former Silicon Valley correspondent for CNBC.com and the former Tech Beat columnist for SFGate.com. The views he expresses are his own.
