WASHINGTON, August 19, 2019 — Despite all the sturm und drang surrounding Section 230 of the Communications Decency Act today, the measure was largely ignored when first passed into law 23 years ago. A great deal of today’s discussion ignores the statute’s unique history and purposes as part of the short-lived CDA.

In this four-part series, Broadband Breakfast reviews the past with an eye toward current controversies, and the future of online free speech.

This article looks at content moderation on early online services, and how that fueled concern about indecency in general. On Tuesday, we’ll look at how Section 230 is similar to and different from America’s First Amendment legacy.

On Wednesday, in Part III, Broadband Breakfast revisits the reality and continuing mythology surrounding the “Fairness Doctrine.” Does it or has it ever applied online? And finally, on Thursday, we’ll envision what the future holds for the legal treatment of “hate speech.”

While most early chat boards did not moderate, Prodigy did – to its peril

The early days of the internet were dominated by online service providers such as America Online, Delphi, CompuServe, and Prodigy. CompuServe did not engage in any form of content moderation, whereas Prodigy positioned itself as a family-friendly alternative by enforcing content guidelines and screening offensive language.

It didn’t take long for both platforms to be sued for defamation. In the 1991 case Cubby v. CompuServe, the federal district court in New York ruled that CompuServe could not be held liable for third party content of which it had no knowledge, similar to a newsstand or library.

But in 1995, the New York supreme court ruled in Stratton Oakmont v. Prodigy that the latter platform had taken on liability for all posts simply by attempting to moderate some, constituting editorial control.

“That such control is not complete…does not minimize or eviscerate the simple fact that Prodigy has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards,” the court wrote.

Prodigy had more than two million subscribers, and they collectively generated 60,000 new postings per day, far more than the platform could review on an individual basis. The decision gave them no choice but to either do that or forgo content moderation altogether.

Many early supporters of the internet criticized the ruling from a business perspective, warning that penalizing online platforms for attempting to moderate content would incentivize the option of not moderating at all. The resulting platforms would be less useable, and by extension, less successful.

The mid-1990s seemed to bring a cultural crises of online indecency

But an emerging cultural crisis also drove criticism of the Stratton Oakmont court’s decision. As a myriad of diverse content was suddenly becoming available to anyone with computer access, parents and lawmakers were becoming panicked about the new accessibility of indecent and pornographic material, especially to minors.

A Time Magazine cover from just two months after the decision depicted a child with bulging eyes and dropped jaw, illuminated by the ghastly light of a computer screen. Underneath a bold title reading “cyberporn” in all caps, an ominous headline declared the problem to be “pervasive and wild.”

And then it posed the question that was weighing heavily on certain members of Congress: “Can we protect our kids—and free speech?”

The foreboding study behind the cover story, which was entered into the congressional record by Sen. Chuck Grassley, R-Iowa, was found to be deeply flawed and Time quickly backpedaled. But the societal panic over the growing accessibility of cyberporn continued.

Thus was born the Communications Decency Act, meant to address what Harvard Law Professor Howard Zittrain called a “change in reality.” The law made it illegal to knowingly display or transmit obscene or indecent content online if such content would be accessible by minors.

Challenges in keeping up with the sheer volume of indecent content online

However, some members of Congress felt that government enforcement would not be able to keep up with the sheer volume of indecent content being generated online, rendering private sector participation necessary.

This prompted Representatives Ron Wyden, D-Ore., and Chris Cox, R-Calif., to introduce an amendment to the CDA ensuring that providers of an interactive computer service would not be held liable for third-party content, thus allowing them to moderate with impunity.

Section 230—unlike what certain politicians have claimed in recent months—held no promise of neutrality. It was simply meant to protect online Good Samaritans trying to screen offensive material from a society with deep concerns about the internet’s potential impact on morality.

“We want to encourage people like Prodigy, like CompuServe, like America Online, like the new Microsoft network, to do everything possible for us, the customer, to help us control, at the portals of our computer, at the front door of our house, what comes in and what our children see,” Cox told his fellow representatives.

“Not even a federal internet censorship army would give our government the power to keep offensive material out of the hands of children who use the new interactive media,” Wyden said. Such a futile effort would “make the Keystone Cops look like crackerjack crime-fighters,” he added, referencing comedically incompetent characters from an early 1900s comedy.

The amendment was met with bipartisan approval on the House floor and passed in a 420–4 vote. The underlying Communications Decency Act was much more controversial. Still, it was signed into law with the Telecommunications Act of 1996.

Although indecency on radio and TV broadcasts have long been subject to regulation by the Federal Communications Commission, the CDA was seen as an assault on the robust world of free speech that was emerging on the global internet.

Passage of the CDA as part of the Telecom Act was met with online outrage.

The following 48 hours saw thousands of websites turn their background color to black in protest as tech companies and activist organizations joined in angry opposition to the new law.

Critics argued that not only were the terms “indecent” and “patently offensive” ambiguous, it was not technologically or economically feasible for online platforms and businesses to screen out minors.

The American Civil Liberties Union filed suit against the law, and other civil liberties organizations and technology industry groups joined in to protest.

“By imposing a censorship scheme unprecedented in any medium, the CDA would threaten what one lower court judge called the ‘never-ending world-wide conversation’ on the Internet,” said Ann Beeson, ACLU national staff attorney, in 1997.

By June of 1997, the Supreme Court had struck down the anti-indecency provisions of the CDA. But legally severed from the rest of the act, Section 230 survived.

Section II, tomorrow: Is Section 230 all that different from the First Amendment?

WASHINGTON, June 20, 2019 — Legislation authored by Sen. Joshua Hawley could signal the start of a new chapter of the culture war: Conservatives directly targeting Silicon Valley tech companies.

On Wednesday, Hawley, R-Mo., announced that he’d introduced the “Ending Support for Internet Censorship Act” (PDF), which would repeal a provision of the 1996 Telecommunications Act that granted online service providers immunity from liability for user-generated content posted on their websites.

The law, known as Section 230 of the Communications Decency Act, has increasingly come to be seen as generous – and perhaps overly generous – in encouraging robust online discussion. Many of the law’s most public beneficiaries – Facebook, Google, Twitter – are now the technology platforms that are America’s largest companies.

As a result, a growing group of tech critics are saying that Section 230 is no longer in the national interest.

Section 230 was included in the Telecom Act as a way of incentivizing websites concerned that they would be held liable for the comments of others. It was intended to reverse court rulings holding an online service provider liable for defamatory content posted by users when the tech company employed moderators to enforce terms of service rules.

Hawley’s mission against Facebook

Only six months into his first term, Hawley has garnered attention in conservative media circles by taking up the cause of conservative-identifying social media users. They claim that social media companies who ban or suspend the social networks’ rules against hate speech, threats, and harassment amounts to political censorship, even if done by a private sector actor.

(See our story last month, “Sen. Josh Hawley Accuses Facebook of Addiction and Calls Social Media Worth-Less,” which also touched upon Sen. Hawley’s views about Section 230.)

Now, Hawley says he wants condition providers’ immunity on their ability to convince four of five members of the Federal Trade Commission that they have not discriminated against conservatives when applying their terms of service.

The bill would only apply to platforms with more than 30 million active monthly users in the U.S., more than 300 million active monthly users worldwide, or more than $500 million in global annual revenue.

It would require these giant tech platforms to biannually provide the FTC with “clear and convincing evidence” that “their algorithms and content-removal practices are politically neutral.”

“With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” Hawley said in a statement.

“This legislation simply states that if the tech giants want to keep their government-granted immunity, they must bring transparency and accountability to their editorial processes and prove that they don’t discriminate.”

Tech industry lobbyists wonder whether they should take it seriously

But industry and legal experts savaged Hawley’s proposal as antithetical to the First Amendment and a throwback to policies long rejected by conservatives, including the Fairness Doctrine that required broadcasters using the nation’s radiofrequency spectrum to grant airtime to opposing views.

Computer & Communications Industry Association President Ed Black deplored the “ludicrousness” of Hawley’s proposal, which he called “an unbelievable disregard for the essence of the First Amendment and attempt to overlay a lens of partisan politics over the communications of millions of Americans.”

“If Congress is serious about tech companies doing more to remove hate speech and illegal content online, putting new restrictions on the legal protection that allows them to do that would be ill-advised,” Black said.

In a statement, TechFreedom President Berin Szoka said that the measure would effectively require internet companies to obtain a license from the FTC in order to operate. It would make them depend on the goodwill of FTC commissioners and the presidents who nominate them.

Szoka, who testified last year at a House Judiciary Committee hearing on conservatives’ allegations of political censorship, predicted that the biannual vote Hawley’s bill requires would turn into a “partisan bloodmatch” in which companies would be presumed guilty and have to prove their innocence.

“The bill would give politicians a gigantic regulatory hammer to use against big tech and transform the FTC overnight into the most politicized regulatory body in Washington,” he said. “Sadly, that seems to be the point.”

Szoka noted that Hawley’s bill would deter companies from making social networks “usable for normal people” by moderating content and combatting abusive behavior, extreme content and disinformation, and suggested such deterrence is meant to benefit Republicans.

“If, as social science research suggests, such harmful content seems to help Republicans energize their base more than it helps Democrats, even truly ‘neutral’ enforcement of terms of service will, on net, hurt the Right,” he said. “That which would explain why Republicans insist on framing content moderation as ‘censorship’ of their views.”

Emily McPhie contributed reporting.

WASHINGTON, May 15, 2019 – Exactly three months after invoking the National Emergencies Act to fund his wall along the U.S.-Mexico border, President Donald Trump is using emergency powers to enable the Department of Commerce to ban U.S. telecommunications equipment manufacturers from selling chips to the Chinese state-owned equipment manufacturer Huawei.

The administration blamed Huawei’s alleged trade with Iran as a reason for the designation.

The President on Wednesday signed an Executive Order declaring a national emergency with respect to foreign espionage using U.S. communication networks and prohibiting “any acquisition, importation, transfer, installation, dealing in, or use of any information and communications technology or service” in which a foreign government holds an interest.

“The President has made it clear that this administration will do what it takes to keep America safe and prosperous, and to protect America from foreign adversaries who are actively and increasingly creating and exploiting vulnerabilities in information and communications technology infrastructure and services in the United States,” White House Press Secretary Sarah Huckabee Sanders said in a statement.

Shortly after the White House released the new Executive Order, the Commerce Department turned the authority granted it by Trump’s order into action with an announcement that the department’s Bureau of Industry and Security would add Huawei to its “entity list” of banned companies based on “information available to the Department that provides a reasonable basis to conclude that Huawei is engaged in activities that are contrary to U.S. national security or foreign policy interest.”

The Commerce Department statement blamed Huawei for engaging “in activities that are contrary to U.S. national security or foreign policy interest. This information includes the activities alleged in the Department of Justice’s public superseding indictment of Huawei, including alleged violations of the International Emergency Economic Powers Act, conspiracy to violate IEEPA by providing prohibited financial services to Iran, and obstruction of justice in connection with the investigation of those alleged violations of U.S. sanctions.”

“This action by the Commerce Department’s Bureau of Industry and Security, with the support of the President of the United States, places Huawei, a Chinese owned company that is the largest telecommunications equipment producer in the world, on the Entity List. This will prevent American technology from being used by foreign owned entities in ways that potentially undermine U.S. national security or foreign policy interests,” Commerce Secretary Wilbur Ross said in a statement Wednesday.

“President Trump has directed the Commerce Department to be vigilant in its protection of national security activities. Since the beginning of the Administration, the Department has added 190 persons or organizations to the Entity List, as well as instituted five investigations of the effect of imports on national security under Section 232 of the Trade Act of 1962.”

The Commerce Department’s action means that Americans will need a license from the department in order to sell or otherwise transfer technology to Huawei, which can be denied if the transfer would harm American interests.

Inclusion on the Entity List could be a massive blow to Huawei’s bottom line in favor of an American company like Qualcomm, as many mobile phones and other wireless devices require such chips.

The Commerce Department took a similar action with another Chinese manufacturer, ZTE, earlier this year, but rescinded the decision after Chinese President Xi Jinping made a personal request to President Trump to have the company removed from the Entity List.

Federal Communications Commission Chairman Ajit Pai also issued a statement in support of the action, saying that he “applaud[ed] the President for issuing this Executive Order to safeguard the communications supply chain.  Given the threats presented by certain foreign companies’ equipment and services, this is a significant step toward securing America’s networks.”