Policymakers must begin to understand that Section 230 liability protection is much more foundational to the effective functioning of the internet than they realize.
On July 23, the Internet Infrastructure Coalition (i2Coalition), a trade association for companies that provide the technical infrastructure and services through which the internet operates (e.g., data centers, web hosting companies, domain registrars, and cloud infrastructure providers), held an online panel discussion to explore what Section 230 liability protection means in relation to how the broader internet functions.Footnote1 Titled Understanding the Full Scope of Section 230 in the Internet Ecosystem, the panel included not only representatives of i2Coalition members (GoDaddy, Rackspace) but also the director of copyright, permissions, and information policy for the New York Public Library, Greg Cram, who participated on behalf of the Association of Research Libraries, and a professor from the Indiana University O'Neill School of Public and Environmental Affairs, Beth Cate, who participated on behalf of EDUCAUSE to provide a higher education perspective on the law and its potential reform or repeal.
Christian Dawson, the executive director of the i2Coalition, opened the webinar by providing background on the law, commonly known as Section 230 of the Communications Decency Act of 1996.Footnote2 Dawson noted that because policymakers and commentators have focused on Section 230 in relation to social media giants like Facebook and Twitter, some have assumed that the law was written specifically to protect those companies. However, as "1996" in the law's name implies, Section 230 predates the rise of the major social media companies by several years, which Dawson illustrated with a helpful timeline. Rather than being a gift to social media firms to allow them to avoid responsibility for what happens on their platforms, Dawson stressed that Section 230 was intended to permit companies and organizations that support and operate on the internet to manage their operations and services without the fear of crushing litigation costs if a user posts something inaccurate or defamatory, or if the entity blocks user-generated content that doesn't comply with its use requirements or community standards of decency, for example. He also highlighted that the text of the law specifically identifies libraries and educational institutions as providers of the "interactive computer services" that Section 230 shields.
Dawson continued by identifying important, necessary functions that Section 230 allows organizations supporting or operating on the internet to do. The following are just a few of the examples he provided:
- Spam blocking
- Developing and enforcing blocklists and deny lists
- Applying anti-malware software and parental-control filters
- Operating and maintaining comment forums
The corporate representatives on the panel—James Bladel, vice president of global policy at GoDaddy, and Sydney Schneider, manager of legal operations at Rackspace—then added context to Dawson's points by discussing the importance of Section 230 to the technical infrastructure and services that their companies provide. For example, Bladel highlighted the value of Section 230 in preventing users or third parties from drawing the company into legal disputes about the content of a site simply because GoDaddy has registered the domain name or provides hosting services for the site. Schneider, in turn, illustrated the difficulties that a loss of Section 230 protection would pose for data center operators, noting that it would be like asking a city to have the capacity to know about and police the contents of an individual document in any given room in any apartment in any given apartment complex anywhere in the city. Simply put, they explained that the loss or severe restriction of Section 230 protections would require companies such as theirs to limit how their infrastructure could be used to such an extent that it might not be usable at all—or at least not without tremendous expense.
In shifting to the library context, Cram discussed the significance of Section 230 liability protections to the ability of libraries to serve as convenors of public discourse and to collect, organize, and provide information about their collections. He cited the example of a project in which the New York Public Library sought to expand the historical record it was developing by soliciting input, insights, and additional facts and resources from residents and communities around the city. The library would not be able to pursue a project with such a significant level of openness and public engagement if it had to worry about liability risks from citizen comments and contributions. Likewise, in the absence of Section 230, the library would also have to worry about lawsuits emerging from efforts to enforce its appropriate use policy and block inappropriate comments or postings.
Cate brought these various threads together in her comments by noting that higher education institutions are impacted by Section 230 at all the levels discussed—from network infrastructure and operations through cloud services and public content/comment posts on institutional sites (including campus libraries). That allowed her to endorse the points raised by the other panelists while adding that the loss or serious erosion of Section 230 liability protections would have unique implications for the "learning, research, and service" mission of higher education. Historically, fulfilling those responsibilities has entailed the relatively open sharing of information and commentary across college and university websites, which are often managed in a highly decentralized fashion. Concerns about legal liability arising from posts or comments made on departmental web pages, student newspaper sites, athletic team pages, and so forth would likely drive institutions to withdraw content from the public sphere and eliminate online vehicles for public engagement. Such a move would certainly damage the institution's service to its community while also reducing avenues to learning and research. In addition, Cate stressed that such risk-mitigation efforts, including the heightened monitoring of institutional sites, would come with increased costs, and those costs would rise further as institutions saw more and more lawsuits with their liability shield gone, regardless of the steps they took to minimize their risks.
Cate closed by explaining the special characteristics of Section 230 that make it particularly beneficial in facilitating the productive use of the internet by all stakeholders, including colleges and universities:
- The breadth of the liability protection the law offers significantly limits the potential for a variety of marginal lawsuits.
- This blanket protection ensures that lawsuits with little or no merit in light of Section 230 will be dismissed early in the legal process, substantially limiting costs.
- Because it minimizes the potential for lawsuits against organizations that may host or handle content but aren't involved in producing it, Section 230 keeps the cost of innovation in the internet ecosystem low, creating more opportunities for new, productive services and resources to emerge.
Overall, the panelists demonstrated that a narrow focus on the major social media companies in Section 230 debates opens the door to repeal or reform proposals that carry a host of unintended consequences in their wake. That is why, the panelists collectively argued, policymakers must begin to understand that Section 230 is much more foundational to the effective functioning of the internet than they have realized up to this point. Given the potential damage to higher education that could result from poorly conceived Section 230 changes, EDUCAUSE will continue collaborating with library and infrastructure organizations to raise awareness about why the law matters to "the rest of us," and why it should matter to policymakers as well.
- Ashley Johnson and Daniel Castro, "Overview of Section 230: What It Is, Why It Was Created, and What It Has Achieved," Section 230 Series: The Law's History, Its Impact, Its Problems (Real and Imagined), and the Path Forward for Reform, Information Technology and Innovation Foundation (website), February 22, 2021. Jump back to footnote 1 in the text.
- James Bladel, Sydney Schneider, Beth Cate, and Greg Cam, Understanding the Full Scope of Section 230 in the Internet Ecosystem, i2Coalition webinar (video recording), July 23, 2021. Jump back to footnote 2 in the text.
Jarret Cummings is Senior Policy Advisor at EDUCAUSE.
© 2021 Jarret Cummings. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.