What Is Section 230 and Why Did President Trump Attack It?

As has been widely reported, last week Twitter marked two of President Trump’s tweets with a fact-checking label, effectively saying that the US President did not speak the truth. (Perhaps no news, “alternative facts” was a term that arrived early in the Trump presidency.)

Good for Twitter. By contrast, Facebook predictably refused to act, once again badly misjudging the historical moment. They are now facing growing criticism and anger at in the US for their refusal to be accountable for how their users abuse their platform. Indeed, current employees staged a virtual protest, and more than thirty of Facebook’s earliest former employees posted an open letter lambasting the company for its moral decay.

President Trump responded to Twitter’s actions by issuing an executive order targeting the (in)famous Section 230 of the Communications Decency Act of 1996. Why this particular law?

According to Big Tech the internet wouldn’t exist without CDA 230’s liability protections for content posted by users – no matter how vile. And given the ever-increasing pressure in the US to reform CDA 230, Silicon Valley is desperate to export it to other places so as to complicate efforts to amend it domestically. For instance, they successfully included it in the US-Mexico-Canada-free trade agreement and are eager to see it incorporated into European policy.

The law’s appeal is clear, CDA 230 on the one hand gives internet intermediaries exemption from liability of what users do:

(1)Treatment of publisher or speaker

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.

… and on the other hand, gives them freedom from liability when they do take action (“good Samaritan”):

(2)Civil liability

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


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


any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]

Blessed if you do, blessed if you don’t. Untouchable. Keep doing whatever you’re doing and don’t mind anyone else. What’s not to like?

Of course, President Trump’s Executive Order appears to be illegal on its face. Twitter did not abuse President Trump’s freedom of speech by adding the fact-check labels, rather Twitter was exercising its own freedom of speech in doing so. That right is guaranteed by the US Consitution’s First Amendment, not CDA 230. And that’s great – if there is one thing Netopia would like to see more of it is intermediary action (that is the topic of almost every post on this blog!). Twitter is a big part of the problem in terms of hate speech, propaganda, threats and more, but a pat on the back is deserved for doing something.

If anything, Trump’s EO is a distraction from real and legitimate debates about how CDA 230’s overbroad liability shield is a root cause of many of the internet’s most intractable problems – it’s the same law Google argued against amending despite child-trafficking website Backpage.com’s reliance on it’s safe harbour. And the growing CDA 230 reformer movement in the US is understandably concerned that Trump’s executive order is a distraction from their cause.

Presidential executive orders are not the answer to fix the internet. CDA 230 is also not the answer. Until Big Tech voluntarily faces up to “do the right thing”, we must keep looking. Suggestions welcome.