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FORTUNE.COM // DECEMBER 2019
Public pressure to do something is mount-
ing. And these days, politicians from both
parties are increasingly happy to oblige.
Democrats blame Section 230 for letting
the likes of Facebook shrug while bullies and
Russian provocateurs run riot on its services.
Meanwhile, Republicans accuse tech firms of
using the broad indemnity offered by the law
to censor conservative news.
“There’s a techlash happening, and a lot of
anger at tech companies is being channeled
into an attack on this particular law,” says
Corynne McSherry, legal director of digital
rights group Electronic Frontier Foundation.
Recently, Sen. Josh Hawley (R-Mo.) intro-
duced a bill that would strip big tech compa-
nies of their Section 230 protection. Only sites
found by the Federal Trade Commission to
monitor content in a “politically neutral man-
ner” would be able to keep their legal shield.
The bill, which legal experts have suggested
is unconstitutional, is stalled for now. But it’s
notable that the idea of modifying or abolish-
ing Section 230 has bipartisan support.
Some commentators have described the
Hawley bill as blowing up the business model
of large Internet companies by forcing them
to vet their users and advertisers in an unprec-
edented fashion. Most likely, these companies
would have to spend big money on lawyers and
content moderators.
Google and Facebook declined to comment.
Matt Schruers, a lawyer for CCIA, a tech trade
group whose members include Google and
Facebook, argues against weakening Sec-
tion 230 and instead favors giving police more
money to pursue criminals online.
In any case, legal experts warn that swinging
a sledgehammer at the law is a bad idea. For
one thing, the First Amendment—not 230—
protects much of what people abhor online,
including hate speech and fake news.
Daphne Keller, an expert on Internet li-
ability at Stanford University, says only a very
small portion of the “bad” content on Facebook
would be barred if Section 230 were rescinded.
The First Amendment would shield the rest.
Critics also argue that large tech companies
would be mostly unscathed by Section 230’s re-
peal because they can afford to hire more mod-
erators and fight any lawsuits related to what
their users post. Small web companies with
tighter budgets, however, would feel the brunt.
Some of those calling for
abolishing Section 230 should
also consider unintended con-
sequences. Lawyers at Benioff ’s
Salesforce, for instance, re-
cently invoked the law after vic-
tims sued his company because
sex traffickers had used its
software. Likewise, News Corp.,
controlled by Section 230 critic
Rupert Murdoch, used the
law to rebuff lawsuits against
MySpace before News Corp.
sold the website.
Those critics, in other
words, hate Section 230 except
when it suits them. Salesforce
and News Corp. didn’t respond
to requests for comment.
The debate over Section 230
is complicated further by al-
legations of corporate skuldug-
gery. Harold Feld, senior vice
president of public interest
group Public Knowledge,
who has written extensively
about Internet law, says some
companies pushing to rescind
Section 230 are doing so to
undermine business rivals.
“Everyone who’s had their
CASE L AW TECH
Here are three key
rulings involving
Section 230.
DRUDGE ( 1997 )
A federal trial court
said a White House
official couldn’t sue
AOL for publishing
a defamatory blog
post by gossip
Matt Drudge.
ROOMMATES.COM
( 2008 ) In a rare
ruling against a web
publisher, a federal
appeals court said
housing hub Room-
mates may be found
liable for discrimina-
tion for letting users
seek roommates
based on gender
and race.
BACKPAGE ( 2016 )
A federal appeals
court blocked a sex-
trafficking victim
from suing a website
that specialized in
prostitution ads.
Congress later ex-
cluded sex traffick-
ing from immunity.
knives out for Google or Facebook but are not directly impacted by
Section 230 are pushing very hard to change it,” he says.
Business software giant Oracle, for example, is a chief opponent
of Section 230. But the company denies wanting to harm competi-
tors and is instead, as Oracle executive vice president Ken Glueck
put it, tired of tech companies “defending the indefensible” by
claiming immunity from what their users post.
Already, courts are narrowing the breadth of Section 230’s li-
ability shield. A federal appeals court recently refused to extend the
law’s protection to Amazon after a woman was blinded in one eye
by a defective retractable dog leash that she bought from a third-
party seller on its site. In the judges’ view, the law didn’t absolve
Amazon’s responsibility for product safety under state regulations.
And last year, for the first time, Congress amended Section 230
by eliminating legal immunity for websites that knowingly let
sexual predators use their platforms. But even this change proved
controversial. Critics say it has endangered sex workers by driving
them underground. If anything, the tweak shows that exceptions
to the original law, which already holds companies accountable for
intellectual property infringements and federal crimes, are possible.
The bottom line is that tech companies are entering a new era.
Old protections are no longer guaranteed.
