Tech Companies and the Uncertain Future of §230

While there has long been controversy surrounding how far regulating the Internet should go, it seemed that the 2016 election has had major impacts on how and what information consumers should and should not see. One law at the center of what the responsibilities are of an Internet Service Provider (ISP) is 47 U.S. Code § 230. 

The law which is part of the Communications Decency Act (CDA), also called Title V of the Telecommunications Act of 1996, provides ISP’s with federal immunity to any cause of action that seeks to make ISP’s liable for information that originated with a third party service user.

Specifically, §230 states: “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.” Additionally, when it comes to civil liability: 

“No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material…”

This law preempts any contradictory state oversight. 

As the Internet and data sharing become more central in our lives, we are seeing more calls for regulatory oversight. Democrats have called for legislation on §230 as they believe that the law allows tech companies to not moderate content enough while the opposite viewpoint is being argued by Republicans. This fight continued into the eventual inclusion of §230 language in the recent passage of the new United States-Mexico-Canada Agreement (USMCA). While the tech industry views the inclusion of this language as necessary for legal certainty abroad, it remains to be seen whether we have heard the last of this domestic political argument. 

There is no doubt that §230 has allowed both the Internet and tech companies to grow. However; with worries growing over privacy and who owns individual data, we expect questions to continue over how far policymakers can go in creating regulatory oversight without inadvertently creating a “chilling effect” on first amendment expression. If you are a technology or content stakeholder and you have questions about state or federal legislative/regulatory data policy, contact us so that we can help you strategize for upcoming developments.