Section 230, the so-called ‘twenty six words that created the internet’, may not be around for much longer. On February 21 and 22, the United States Supreme Court will hear two cases which overturn could it. This could have major implications for how the Internet, and particularly social media, functions in the United States.

What is Section 230?

Section 230 is part of the 1996 Communications Decency Act, which regulates pornographic material on the internet. The CDA is part of the Telecommunications Bill, a piece of early internet legislation introduced under President Clinton. Section 230 states that ‘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’.

This means that internet sites are not legally considered the ‘publisher’ of content posted by users. So they aren’t liable for content in the same way that a traditional publisher, like a newspaper, would be. Under U.S law, if a journalist writes something libellous about you in a newspaper, you can sue the journalist and the newspaper. But if a troll posts something libellous about you on Facebook, you can only sue the troll, not Facebook. Section 230 provides sites with a liability shield. With very few exceptions, like child pornography and material that ‘promotes or facilitates prostitution’, these sites are not legally required to take down any content posted by users.

But that is not to say that these sites don’t moderate content. According to an internal report, over 69 million posts were removed from Facebook in 2021 alone for violating hate speech policies. Last year, Meta claims to have spent $5 Billion USD globally on ‘Safety and Security’ but did not specify how much of this went specifically towards content moderation.

It is, in part, content moderation that has made some figures on the right hostile to Section 230. Section 230 leaves platforms largely free to choose what they take down, leading some to accuse them of political bias and censorship of conservative voices. Then President Trump tried to push through an Executive Order to curb Section 230 but was ultimately stopped by lawsuits. Criticism, however, is not limited to the Right. President Biden has also expressed his opposition to the law. On the campaign trial in 2020, he said ‘Section 230 should be revoked, immediately’. He singled out widespread disinformation on Facebook and its corrosive effect on American democracy.

What are the upcoming cases about?

The upcoming cases are Gonzalez v. Google and Twitter Inc. v. Taamneh. Californian Student Nohemie Gonzalez was killed in the 2015 ISIS Paris attacks. Her family are suing Google, Youtube’s owners. Broadly, they argue that Youtube’s algorithms, which make personalised recommendations to users, promoted ISIS content and helped them to recruit militants, ultimately Caitlin Scott Reporting North America leading to Gonzalez’ death. They argue that these algorithms which actively promote and rank content preclude Youtube from immunity under Section 230.

The Taamneh Family are the relatives of Nawras Alassaf, a Jordanian citizen, killed in a 2017 ISIS attack in Istanbul. The court will hear arguments as to whether Twitter could, if Section 230 does not grant them immunity, be prosecuted under the Anti-Terrorism Act. The Taamneh family will argue that Twitter had a ‘generalised awareness’ of Terrorists on their site and that by permitting the organisation’s presence, Twitter ‘knowingly provided substantial assistance’ to ISIS.

What could the implications be?

Despite its critics, there are those concerned about what the repeal of Section 230 might look like. Some argue that the huge levels of moderation it would require from internet companies would entrench the dominance of major players and stifle competition in the industry. Tech commentator Cory Doctorow argues that ‘once you impose expensive moderation duties on the platforms, you’ll take a few points off their balance sheet, but you will also ensure that no-one can enter the market’. Stanford Law Professor Evelyn Douek imagines a world without 230; ‘platforms that now face potential liability for content on their sites will be far more risk-averse and take a lot more content down to avoid the possibility of facing a lawsuit. The #MeToo movement, for example, might have played out very differently in a world where platforms took down any posts that even remotely looked defamatory.’ Nohemi Gonzalez, 23, was killed on November 13, 2015 while eating dinner friends at a restaurant. Caitlin Scott Reporting North America The Electronic Frontier Foundation points out that removing 230 also poses a threat to ‘cultural platforms like Wikipedia and the Internet Archive. The legal risk associated with operating such a service would deter any entrepreneur from starting one, let alone a nonprofit’. The Electronic Frontier Foundation is a digital rights organisation that submitted arguments for the upcoming Supreme Court hearings.

Image 1: Supreme Court Building Frieze, Wikicommons – [https://commons.wikimedia.org/wiki/ File:Supreme_Court_Building_banner.jpg]

Image 2: President Bill Clinton and Vice President Al Gore signing the Communications Decency Act, 8/2/1996. [https://www.c-span.org/video/?69814-1/telecommunications-bill-signing]

Image 3: Donald Trump tweet calling for repeal of Section 230. This came after Facebook and Twitter removed posts from the President spreading Covid-19 misinformation. [https://twitter.com/ realDonaldTrump/status/1313511340124917760?ref_src=twsrc]

Image 4: Nohemie Gonzalez, ISIS Attack Victim. Photo from CSULB. [https://www.csulb.edu/design/ nohemi-tribute.]