The Communications Decency Act and the Rise of the Trolls 

Consequences of Section 230 on the World Wide Web

Section 230 of the Communications Decency Act is a little-known statutory provision that is far more powerful and important than most casual internet users could imagine. While some argue that it upholds the First Amendment, others feel that internet companies shouldn’t have to moderate the content on their sites.

What Is Section 230?

Section 230 is part of the Communications Decency Act of 1996, which was passed well before the Internet functioned as it does today. The Act was Congress’s first attempt to regulate pornography on the Internet.

The most controversial parts of the law were the anti-indecency and anti-offensive provisions. These two provisions in the Act imposed criminal sanctions on anyone who used the Internet to spread “patently offensive” or “obscene or indecent” content to persons under the age of 18.

These provisions were aimed at curbing obscene behavior on the Internet. However, the Supreme Court found that they infringed on the free speech rights of adults. They concluded that the definitions of ‘offensive’ and ‘indecent’ were too vague, and the provisions were overbroad in restricting adults from lawful speech. Historically, the Court has not liked statutory provisions that curtail First Amendment rights. As such, in 1997, it ruled that the two provisions were unconstitutional. For more information, see Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

The ruling did not strike down the whole law. Section 230 has remained in place and become arguably the most crucial and enduring provision of the Act.

Communications Decency Act Shields ISPs

Section 230 gives immunity to providers of an ‘interactive computer service’ who publish information provided by others. In legal terms:

“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 portion of the Communications Decency Act was intended to help internet providers just be a host. Section 230 allowed internet service providers (ISPs) and content providers to offer space for users to share ideas and content without fear that they would be liable for their users’ content.

Congress passed Section 230 to shield service or content providers from defamation claims or other torts if they assumed an editorial role like a traditional news or information publisher. So, for example, under Section 230, Yelp cannot be held responsible for a user review; only the user can be. Similarly, Facebook cannot be sued for what its users write or share; again, only the user can be held responsible.

Free speech advocates believe Section 230 is invaluable to the Internet. The Electronic Frontier Foundation, a nonprofit that aims to protect digital civil liberties, has argued that Section 230’s “balanced legal and policy framework allows the internet we know to exist.”

Section 230 was passed in 1996. This was long before the evolution of X or Facebook and long before the evolution of the internet ‘troll.’

Section 230 doesn’t give Facebook, TikTok, or X blanket immunity. These platforms can still be prosecuted for violating other laws, including federal criminal laws, sex trafficking laws (discussed below), and intellectual property infringement.

However, outside of these laws, no matter what someone says about you on Facebook, TikTok, or X, Section 230 will protect Facebook, TikTok, and X from a lawsuit.

Section 230 and Presidential Elections

Why is Section 230 important in our elections?

Russia showed us that something as innocuous as a Facebook ad can have serious consequences. In 2017, the US government discovered Russia was using fake Facebook profiles, ads, and events to attempt to influence the 2016 Presidential election. The New York Times reported that Facebook estimated 150 million users of its site and its popular subsidiary Instagram were exposed to the fake material.

Since then, political misinformation has been rife and continues to be poorly moderated on social media. The 2024 US election also saw generative AI tools used to create disinformation that fed into various campaign narratives.

Congress has called for internet platforms like Facebook and X to admit they are more than internet content providers and have become, in a sense, large news networks.

Yet, if these companies admit they are publishers and agree to target fake accounts and fake news, they may lose Section 230 immunity. This could open the door to waves of litigation that test the limits of these companies’ immunity in the courts.

SESTA-FOSTA Tests Section 230

The limits of Section 230 were tested by legislation known as SESTA-FOSTA: an acronym for the Stop Enabling Sex Traffickers Act and the Fight Online Sex Trafficking Act. SESTA-FOSTA passed in April 2018 and has evolved over time as technology has advanced.

When introduced, the two separate bills had some differences, but both sought to amend Section 230 to allow victims to bring suit against those like Facebook, TikTok, X, and other tech companies that violate federal sex trafficking laws.

FOSTA was introduced in the House of Representatives, and SESTA was introduced in the Senate. FOSTA was merged into SESTA and was eventually enacted into law as SESTA-FOSTA. The law aimed to stop online sex trafficking, in large part due to the illicit happenings of the website Backpage.com.

The legislation allows sex trafficking victims to seek compensation from content providers or websites that “knowingly and recklessly” enabled their victimization.

What the Future Holds for Section 230

The future of Section 230 is currently up in the air, as bipartisan lawmakers are looking to sunset the provision by 2027.

Such a move, however, invites fierce debate. Critics have flagged concerns over censorship and its implications for free expression. Indeed, the lack of an equivalent Section 230 protection in other countries has seen greater levels of content moderation from internet platforms.

Regardless, one thing is for certain: the internet landscape has dramatically changed since 1996 and the Communications Decency Act.

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[Editors’ Note: To learn more about this and related topics, you may want to attend the following on-demand webinars (which you can view at your leisure, and each includes a comprehensive customer PowerPoint about the topic):

1. Cyber Security & Data Privacy
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This article was originally published on September 20, 2019 and updated on December 20, 2023. This article was most recently updated by the Financial Poise Editors.]

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