The Trump Administration Should Do No Harm to Section 230

It has been reported that the Trump administration is considering an executive order that would “significantly narrow the protections afforded to [internet service] companies under Section 230 of the Communications Decency Act.” NTU believes this provision of law has been critical to the success and growth of the digital economy, and that proposed changes could threaten the future growth and development of internet services.

First, a brief refresher on what Section 230 is and why it’s important. As NTU wrote in a July letter to Congress on a proposed bill from Sen. Josh Hawley (R-MO), Section 230: crucial for internet services in two ways: 1) it states that the service provider shall not be; treated as the publisher or speaker of any information provided by another information content provider,’ and 2) it shields service providers from liability for ‘good faith’ actions that restrict access or availability to content deemed ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.’ Multiple free-market groups and thinkers have rightly credited Section 230 with helping make America the global leader in digital economic growth.

Hawley’s legislation would hold Section 230 liability protections for internet services hostage to a cumbersome and vague regulatory process, which is deeply troubling. While details of what the Trump administration would do are not exactly clear, moving in the same policy direction of the Hawley bill would be extremely ill-advised. Such proposals undermine a prudent legal provision that has helped the internet flourish and grow in the last several decades. A thriving internet, in turn, has brought countless benefits to American consumers, workers, and taxpayers.

The administration may try to narrow Section 230 by pushing two independent federal agencies, the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC), to be more aggressive in policing the activity of private companies like Facebook, Google, and Twitter.

Beyond NTU’s concerns with taking decisions away from private actors and putting them too firmly in the hands of government regulators, it appears the regulators themselves are less than eager to have this additional authority over Section 230. As Politico reported:

Section 230 doesn’t give the FCC a regulatory hook to act on, and the Republican commissioners who lead the agency have already taken a hard line against one major government effort to regulate broadband providers' conduct — the commission’s Obama-era net neutrality rules.

...Republicans at the FTC, which punishes companies for unfair or deceptive acts, also have said they don’t see a role for the agency in policing allegations of social media bias.

In other words, a hasty executive order could grant powers to government agencies that the agencies don’t want. This is an all-too-rare moment when regulators are asking policymakers to keep authority out of their hands, and the administration should heed these warnings from FCC and FTC commissioners.

In July, NTU joined a coalition outlining seven “Principles for Lawmakers” for any Section 230 reforms. One of those principles states, “We must continue to promote innovation on the Internet,” and adds:

Section 230 encourages innovation in Internet services, especially by smaller services and start-ups who most need protection from potentially crushing liability. The law must continue to protect intermediaries not merely from liability, but from having to defend against excessive, often-meritless suits—what one court called “death by ten thousand duck-bites.” Without such protection, compliance, implementation, and litigation costs could strangle smaller companies even before they emerge, while larger, incumbent technology companies would be much better positioned to absorb these costs. Any amendment to Section 230 that is calibrated to what might be possible for the Internet giants will necessarily mis-calibrate the law for smaller services.

Some of the most valuable services Americans enjoy today may have never been created had it not been for Section 230. Any proposals to change this provision of law should adhere to the principles above, and should keep decision-making out of the hands of government regulators.