A professor tries to turn the tables on Section 230’s web protections

The internet today is largely governed by 26 words in the Communications Decency Act, signed on Feb. 8, 1996, by then-President Bill Clinton. “Today, with the stroke of a pen, our laws will catch up with our future,” he proclaimed during the signing of the act.

The web has changed a bit since then. But Section 230 has not.

Today, social media companies routinely use Section 230 to protect themselves from liability over what users post. Now, an internet scholar wants to change that. Will Oremus wrote about him for The Washington Post. The following is an edited transcript of his conversation with Marketplace’s Lily Jamali.

Will Oremus: So Ethan Zuckerman is this figure who’s been a thinker about the web and about social media for pretty much as long as they’ve been around. He was an early employee of this company called Tripod.com from the original dot-com boom. And then he eventually became a scholar and a thinker about social media. And he is now a professor at University of Massachusetts, Amherst, where he teaches digital media. And he was teaching a class on Section 230, which he thought he knew pretty well. His company had been sued back in the ’90s, and when Section 230 passed, it resolved that lawsuit. It made clear that they weren’t going to be able to be held liable for that sort of thing. So one day, a couple years ago, who was teaching his class and reading the text of this statute out loud, and he stumbled across a part that just made a light bulb go off in his head. He told me it was like, “Wait a minute.” There’s a part of the law that actually says that it protects users of online service providers from being sued for efforts that they make to try to filter content and make content safer for themselves or others.

Lily Jamali: Very interesting. And one of the people that tried to allow users or enable users to do that was a friend of Zuckerman’s, this person who created something called Unfollow Everything. Tell me that story. How did that app work, exactly? And what was the problem with it as Meta, the parent company of Facebook, saw it?

Oremus: Yes, so there was a U.K.-based technologist and software developer named Louis Barclay, who built a tool that he called Unfollow Everything. So this tool started to take off and get some coverage. And people were like, “Oh, cool,” and started downloading and using it. And Meta was like, “Uh, not so fast. We don’t really like this. And we’re gonna say that it’s actually a violation of our terms of service. And you’re gonna have to take it down. And moreover, if you don’t take it down, we will sue you. And oh, by the way, you are banned for life from Facebook and Instagram for violating our terms.” And that’s the kind of thing that Ethan Zuckerman, when he heard about that, he was like, “Wow, that’s really unfair. That’s not right. Why won’t Facebook let us do this?”

Jamali: Yeah. And so he’s moved forward with a lawsuit that asks a California court to declare that Meta, the parent company of Facebook and Instagram, cannot ban or sue him for building an unfollowing tool like the one that Barclay built. So what would a ruling in Zuckerman’s favor against Meta mean for Big Tech, do you think?

Oremus: Yeah, it’s gonna depend a lot on what the ruling is. And when I talked to experts, even people who are experts on Section 230, like Jeff Kosseff, who wrote a book about it, they say they don’t know how a court is going to look at this. There’s never been a lawsuit quite like this one that tried to get a court to declare in advance — you know, Zuckerman hasn’t even released his [app], he’s making a sequel to the tool that got Louis Barclay banned. It’s an Unfollow Everything. 2.0; he hasn’t even released it yet. He wants a court to say ahead of time that he can’t get in trouble for doing so because Section 230 protects his right to do so. We don’t know how a court will rule. You can imagine a really narrow ruling that will maybe make way for his tool, but doesn’t say anything about other tools that other people would build. You can also imagine a broad ruling where the court affirms that, yes, this is a correct reading of Section 230. And then another thing is, there’s been this idea of algorithmic choice where what if there was like a marketplace or app store of algorithms that would order our feeds in different ways, maybe less addictive ways? A ruling in this case, in theory, you could imagine one that opens up these platforms to that kind of marketplace of algorithms.

Jamali: And what you’re describing sounds like it could be a total paradigm shift when it comes to the way that we interact with social media. What have you heard from Meta and other companies in this space, if anything while, reporting this?

Oremus: Yeah, Meta isn’t talking about it, I think because of the active litigation, but I have talked to people who have been inside the tech companies, and I talked to Daphne Keller, who was an expert inside Google and now is outside of Google. She said that one thing that they’re likely to raise is privacy concerns. So if you remember the Cambridge Analytica scandal, this actually originated with a tool, one of these sort of third-party tools, that was billed as an academic research tool where you opted in to letting it gather data on you. The makers of that tool turned out to have ulterior motives. And they were selling that data and packaging it for political targeting in the 2016 election, which is why it became such a scandal and controversy. But companies like Meta are going to say, “Look, if you force us to enable any kind of third-party person to come along and build whatever tool they like, you’re going to end up with 100 more Cambridge Analyticas, because we can’t control what they do with that data once it leaves our hands.”

Jamali: So Section 230 really shaped the internet as we know it today. And all big tech companies use it as an immunity shield now, it seems, to avoid responsibility for the things that users post. How big of a deal would it be if Section 230 were now wielded in a way that doesn’t just protect tech companies, but also consumers?

Oremus: Yeah, I think it would be noteworthy. It would certainly maybe change some of the incentives if Section 230 were interpreted to give broader protections to users and to sort of third-party developers in the guise of being users of these platforms. But they’re actually even bigger potential changes afoot for Section 230. So there’s been a lot of talk in recent years amid the backlash against tech and social media of “Could we reform Section 230?” If you recall, then-President Donald Trump threatened to repeal Section 230 in 2020 when he was upset with the tech companies. President Joe Biden has expressed dissatisfaction with it. And just last week, there was a bipartisan bill introduced by the top Democrat and Republican on a House committee that would sunset Section 230 altogether — say, in 18 months, this whole statute is going to go away, the idea being that then they give Congress 18 months to come up with a replacement for it. But there’s also a lot of support for Section 230, certainly among Big Tech and the tech lobby. They’ll fight tooth and nail to keep Section 230 because it’s critical to their business model. But also, there are free speech advocates who feel that Section 230, for all the downsides of social media, has really been a boon to free expression around the world, and that to take it away would not be the right way to deal with the ills that have flowed from social media.

Jamali: So even if this lawsuit brought by Ethan Zuckerman, who we talked about earlier, even if this lawsuit goes nowhere, do you think his advocacy could have ripple effects? I mean, might we see other pro-consumer advocates like him or groups use this strategy to rein in Big Tech?

Oremus: Yeah, I think you can see it as part of this sort of simmering movement. And it’s always been there to varying degrees, but this movement among people who are technologists, but who don’t like the power of the Big Tech gatekeepers, and they’re always looking for ways to sort of give the web back to the individual, back to the small startup, back to the user. And I think we’ve seen a little more momentum for that in the past few years. Some of it has been accelerated by Elon Musk’s takeover of X. It sent a lot of people who use Twitter scurrying and looking for alternatives. And now we have this bevy of alternatives to Twitter. Mastodon is this open-source distributed network. There’s one called BlueSky that has a similar idea that lets you choose your own moderation and choose your own algorithm. So I don’t think that it’s going to be a revolution. But I do think that on the edges, people who care about user control, people who care about choice interoperability, are winning some battles, and I think this lawsuit is part of that.

More on this

Will has another analysis from February in which he explains that “Section 230 has long had its critics in Washington.” But while they were once a vocal minority in Congress, that’s changed. Powerful members heading up powerful committees are now quite vocal about the need for a Section 230 reform. A lot of them were in Congress when it became the law almost three decades ago.

But as The Washington Post editorial board has written, Section 230 reform is a “dangerous beast to wrangle. Every strikethrough and every addition risks unintended consequences,” the board writes. They might prompt sites to overpolice or not police at all. Some proposals are quite possibly unconstitutional. Still, they write, the case for reform is strong. A potential place to start? Requiring sites to remove content deemed unlawful by a court.