The Future of the Internet Post-Election
On top of the myriad of issues 2020 has brought, what’s often called the “foundation of the internet” is also facing increased scrutiny. Section 230 of the Communications Decency Act (CDA), a provision of the 1996 law that provides legal immunity to “providers of interactive computer services,” will likely see a major reform initiative regardless of the upcoming presidential election outcome. Though CDA 230 has been under fire since 2017, so far only one modification has been made: In April 2018, President Trump signed Fight Online Sex Trafficking Act (FOSTA) into law (also referred to by its Senate moniker SESTA), which carved out a new exception to Section 230 creating platform liability for sex trafficking content. As a result, many websites began to purge legal content to mitigate risk.
Lawmakers and consumers alike are weighing in: Democrats, Republicans, the tech savvy, the tech confused, as well as single-issue advocates for issues like child trafficking and freedom of speech. While many voices agree the provision isn’t working, consensus on what is wrong and how to fix has proved more elusive. In the contentious debate, proposals to curtail CDA 230 protection usually pursue one of three goals:
Protect freedom of expression: One camp contends that allowing technology platforms to moderate content as they see fit presents a threat to freedom of expression and gives the companies too much power. President Trump has adamantly opposed this and released an executive order in May seeking to reevaluate protections. Many championing this approach see an anti-conservative bias in policies and their enforcement by information platforms. They argue that companies with resources and interest in censoring discourse shouldn’t get protection from other provable harms happening on their platforms.
Address problematic content: Another group of often left-leaning critics argue that technology platforms are not doing enough to address misinformation, election interference and other content they find offensive. In their view, liability protections effectively help promulgate content that platforms should not tolerate. In January, Presidential nominee Joe Biden said Section 230 should be “revoked, immediately.”
Issue specific approaches: In June of this year, a bipartisan bill was introduced: the Platform Accountability and Consumer Transparency (PACT) Act, co-sponsored by Brian Schatz (D-HI) and John Thune (R-SD), which attempts to “strengthen transparency in the process online platforms use to moderate content and hold those companies accountable for content that violates their own policies or is illegal.” Another proposed bill is the bipartisan EARN IT Act, which focuses on child exploitation and creates an incentive system for the tech industry to “earn” liability protections by complying with certain practices and government requests.
Many internet advocates, meanwhile, maintain that no reform is necessary. No one claims the law and its ambiguity is perfect – but these voices advocate that any change could shake the foundation of a free and open internet.
Takeaway: Momentum to alter Section 230 will continue post-election, regardless of the political outcome. Depending on how the chips fall in chambers and the executive office, either party could look to leverage the issue as a “quick win” and rallying point to define a moment of political victory. However, a reform won’t be easy or without drama – particularly from those who know how to leverage the internet community (as it stands) to their advantage. As we saw with net neutrality, “power to the people” internet reform issues can rile up users to take action.
A win on regulating the internet could turn out to be a pyrrhic victory. Legislative or regulatory changes will likely be challenged in court, enforcement could wane as political power shifts, and voters seeing disruption of online services may take revenge on those responsible for them at the polls.
