Joe Manchin, Nancy Pelosi and Ron Wyden

WASHINGTON – If you’ve read much about regulation of the internet, then you’ve probably heard many times that the ‘safe harbor’ offered to website operators under Section 230 of the Communications Decency Act has been of central importance to the development of the internet as we know it.

For good reason, much of the discussion of this safe harbor focuses on §230(c)(1), which reads “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.”

Advocacy groups like the Electronic Frontier Foundation (EFF) sometimes refer to Section 230 immunity as “the most important law protecting internet speech” – and I suspect very few observers in the social media space would disagree.

In recent times though, some elected officials in the U.S. have begun to see Section 230 in a different light. They’ve come to look at it has a hindrance in holding websites and online platforms accountable, a stumbling block which comes between certain ‘bad actors’ and the administration of justice.

In a recent interview with the Recode Decode podcast, Speaker of the U.S. House of Representatives Nancy Pelosi suggested that Section 230 immunity may be done away with, because internet companies have abused the safe harbor it provides.

“230 is a gift to them, and I don’t think they are treating it with the respect that they should,” Pelosi said. “And so I think that that could be a question mark and in jeopardy… For the privilege of 230, there has to be a bigger sense of responsibility on it, and it is not out of the question that that could be removed.”

Pelosi is not the first elected official to warn that Section 230’s protections may be in jeopardy. Last summer, Senator Ron Wyden, one of the legislators who helped author the safe harbor, wrote an opinion piece warning that if internet companies don’t start doing more to police the expression published via their websites, they could find themselves losing the safe harbor altogether.

“Failure by the companies to properly understand the premise of the law is the beginning of the end of the protections it provides,” Wyden wrote. “I say this because their failures are making it increasingly difficult for me to protect Section 230 in Congress. Members across the spectrum, including far-right House and Senate leaders, are agitating for government regulation of internet platforms. Even if government doesn’t take the dangerous step of regulating speech, just eliminating the 230 protections is enough to have a dramatic, chilling effect on expression across the internet.”

The month after Wyden published his opinion piece, another Senator gave voice to the possibility of passing more laws which carve out exceptions to Section 230’s safe harbor.  And as Sen. Joe Manchin noted at the time, Congress has already created one such exception with the Stop Enabling Sex Traffickers Act (“SESTA”) and Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), which passed a year ago in a package often referred to as “FOSTA/SESTA.”

“Just like how we passed FOSTA and SESTA, we passed bills that held you liable and responsible,” Manchin said at the hearing, directing his comments to Twitter founder Jack Dorsey and Facebook COO Sheryl Sandberg, who were appearing as witnesses. “Don’t you think we should do the same with opiate drugs and the way they’re being used in your platform? Would you all support us doing that?”

Comments like those made by Pelosi, Wyden and Manchin have led me to wonder aloud: Is the safe harbor of Section 230 at serious risk of being further undermined, or even eradicated altogether?

Attorney Larry Walters, who is part of the legal team representing the Woodhull Freedom Foundation and other plaintiffs in their challenge to the constitutionality of FOSTA/SESTA, told YNOT that “once lawmakers created the first carve out to Section 230 through FOSTA/SESTA, additional attempts (to narrow the safe harbor) were inevitable.”

“This is what happens when Congress gets its nose under the tent of something as important as Section 230 immunity,” Walters said. “Politicians will argue that if the action was justified to fight sex trafficking, they must do it to combat terrorist speech, racist content, or [insert hot button issue of the day]. But as the drafters of Section 230 understood in 1995, that legal immunity was essential for the fundamental operation of the Internet as we know it.”

Like most other observers familiar with how Section 230 immunity has been interpreted by the courts, Walters believes that without the protection of Section 230, the internet as we know it will become a thing of the past.

“If hosts, social media platforms, or other online service providers were subject to lawsuits based on the speech of their users, online intermediaries would cease to exist,” Walters said. “The legal risks would be too great, and the content moderation obligations too expensive.”

While Pelosi may be right when she says Section 230 was “a gift” to internet companies, as Walters observed, it’s a gift that’s consistent with bedrock American ideals surrounding free speech and freedom of expression.

“Section 230 is based upon First Amendment principles,” Walters said. “We should encourage the free flow of information in the marketplace of ideas. If we start punishing platforms for the failure to identify and remove ‘bad’ content, the incentive for online innovation shrivels to nothing.  Maybe we will retain the online behemoths that dominate Internet communication today, such as Facebook, Twitter, and Google. But the next useful platform will never launch once the owners contemplate the legal risks.”

Walters also noted it’s a fanciful idea (at best) that website operators will ever be able to police third-party expression so effectively that they could entirely prevent the kind of speech legislators object to from being published.

“Operators will never be able to completely prevent users from posting on banned topics, since any such effort would require them to micro-analyze terabytes of information, in context, on an ongoing basis,” Walters said. “Automated filters and artificial intelligence cannot identify all banned content, and such tools tend to censor more speech than necessary. Removal of Section 230 immunity also acts as a disincentive towards good faith moderation by online service providers. Any effort to identify banned content can result in platforms gaining the kind of knowledge of illegal content that results in increased legal risks.”

Ultimately, while it may be satisfying – and politically expedient – for the likes of Pelosi and Manchin to point their fingers at internet companies, it’s also fundamentally misguided for them to do so.

“It is easy to blame the messenger, but short-sighted,” Walters said. “Here, the messenger is a neutral online platform where speech happens to be found. But the users are responsible for any illegal speech. Imposing blame on a network that provides space for speech to occur is bad policy. The first attempt was a knee-jerk reaction to combat sex trafficking. While there may be a long list of laudable goals that Congress can envision in this realm, it should resist any additional efforts that will end up harming First Amendment rights to free expression.”

Here’s hoping that enough Senators and Representatives see things the same way Walters does to prevent Section 230 from being eviscerated by additional strokes of the same legislative pens that crafted FOSTA/SESTA. Honestly, I’m not optimistic this is the case.