The Communications Decency Act CDA Section 230 Meets The U.S. Supreme Court

SCARS Commentary: On the topic of the Communications Decency Act, Section 230 specifically.

As some of you may know, in 1996 a new law was created that allowed websites (and everything is a website) to display content created by the site visitors. This is called the Communications Decency Act, which contained sections, including Section 230.

Ironically, it was actually intended to protect us from crime (specifically porn) – oops!

But as everyone wanted, website publishers needed a way to allow interaction with their visitors, such as comments, product reviews, and blogs, without being at risk for what they published. This is the Section 230 part of the law. It gave the publishers immunity from lawsuits for anything their users posted or published.

Today, we now know that not only did the CDA Section 230 allow for much of what we know today as the Internet, search engines, social media, Wikipedia, Youtube, Facebook, and so much more. But section 230 also came with unforeseen consequences as deadly as Ebola!

It allowed all of the websites and publishers to establish their own standards that they would follow, such as Facebook’s wonderful community standards, and as long as they wrote them and then made some effort to follow them – what could go wrong, right?

Well basically, everything could go wrong and it did – section 230 allowed the rampant spread of cyber-enabled crime onto the world’s largest crime wave. Online criminals use this loophole to spread malignant content trapping victims in the tens of millions each year. But Facebook and the other big web publishers do not really look or care because they are immune from liability because of section 230! Seems fair right? Hell, no it does not.

For 8 years SCARS has been trying to get the U.S. Congress to listen to a set of simple modifications to the CDA Section 230 to fix this problem, and make the platforms liable if they ignore reports of crime and abuse on their platforms. But the U.S. Congress has REFUSED to act.

This week, a lawsuit successfully made it all the way to the U.S. Supreme Court, arguing that the Communications Decency Act Section 230 and the implementation of it by the publishers are directly responsible for terrorist acts. SCARS believes they are right. But the Justices of the Supreme Court will have to decide the matter, and either strikes down Section 230 or let it stand.

But here’s the problem.

If the Supreme Court strikes down the law, then ALL user content may have to be turned off. All commenting, all reviews, all shared blogs, all search content, all YouTube videos, and all social media. All platforms may be forced to scale back and allow only approved content on their platforms.

Now in reality, would that be the end of the world? No, it would not. We would simply go back to the world of 1994. And have the benefit that Congress would have to pass a new law quickly to address these issues.

But as we have seen time and time again, when legislatures are rushing they tend to pass bad laws, so we might end up with something much worse. This is a devil’s dilemma.

The status quo harms most of the world and has created a multi-trillion-dollar industry in transglobal organized crime but it has also created a multi-trillion-dollar internet industry. Will we be throwing the baby out with the bath water?

The Case At Hand

According to Time Magazine

On Tuesday, the Supreme Court heard oral arguments of a case that has the potential to transform the internet—whether tech companies can be held liable for the content on their platforms.

But if the initial rounds of questioning were any indication, it does not seem likely that the court is ready to disrupt the status quo of Section 230, which shields platforms like YouTube and Facebook from lawsuits over the content they host. Judges on both sides of the ideological aisle expressed skepticism of the plaintiff’s arguments, and suggested several times that reform should be left to Congress. While the Supreme Court may yet upend Section 230 in the future, it seems unlikely Justices will do so through this case. That means the activists demanding the Big Tech reform will likely have to continue fighting an uphill battle.

The case in question is Gonzalez v. Google, which was filed by the family of Nohemi Gonzalez, a 23-year-old who was killed by an ISIS gunman in Paris in 2015 as part of a series of attacks that killed 130 people.

Gonzalez’s parents and the families of other deceased victims argue that YouTube played a role in the recruitment of ISIS members who participated in the attack. They argue that because YouTube suggests content to users based on their views, it pushed those susceptible to ISIS propaganda towards joining the group. And if YouTube played a role in recruitment, that would place Alphabet, which owns YouTube, in violation of U.S. laws about aiding and abetting acts of terrorism, the lawsuit argues.

Alphabet (the parent company of Google) argues it is protected by Section 230 of the Communications Decency Act (CDA), which shields tech companies from being sued over user-generated content. The company contends that Section 230 is an essential part of the company’s ability to provide useful and safe content. That stance has been supported by virtually every major tech company, from Yelp to Reddit to Meta to Tinder.

Read the rest here

This Brings Us To The Present Moment

The Supreme Court will decide this issue on the merits of the individual case. But either way, it creates massive problems.

If the Big Tech industry giants are not held liable, nothing will change and it may make it even harder for cases like this to reach the Supreme Court again. It may take all pressure off of Congress, assuring their inaction to resolve these issues.

If the law is overturned?

But if the Supreme Court overturns the law or at least Section 230 of the law, then the scramble begins. There could be massive lawsuits over anything and everything online. The Big Tech giants may flip the switch and turn off massive amounts of content to save themselves – we actually have seen this before with the case against MySpace over a decade ago. In that case, MySpace ended up deleting huge amounts of content to comply with a case brought against them by the Federal Trade Commission, and the other leading platform in those days “XANGA”, just shut down.

We all need to be paying close attention to this case. It could go either way, and either way is disastrous.

For us, it is simple, if the law is overturned, we turn off commenting, but we lose our social media. Platforms like Facebook, YouTube, Twitter, Wikipedia, and all the rest will have to turn off all content. It does not mean Google stops, but it has to flush everything and start re-indexing what is left.

But if the law is upheld, will we ever see reforms?

Our experience is that people are great at complaining, but rarely make the effort to create real change – they expect someone else to do it. Those (like SCARS) cannot out-lobby Big Tech in Congress the way things are right now. Advocacy is expensive and few are willing to donate to these causes.

You can make a difference. But we will have to wait and see what happens before we know what action needs to be taken.

Tim McGuinness, Ph.D., DFin, MCPO, MAnth
Managing Director,
Society of Citizens Against Relationship Scams Inc. [SCARS]