A Supreme Court case set for oral arguments on Feb. 21 could transform the web as we know it.
The case was brought by the family of a woman killed in a 2015 Islamic State terrorist attack in Paris. The plaintiffs claimed that YouTube — which is owned by Google — knowingly permitted hundreds of radicalizing videos to be posted, and further alleged that YouTube recommended ISIS videos to users. Google argued that it’s exempted in this case by Section 230 — the powerful 1996 legislation that shields web and social media companies from legal liability for content posted by users.
Google’s position was supported by a federal district court and the U.S. 9th Circuit Court of Appeals. The Supreme Court taking the case signals justices’ interest in weighing in on the landmark law, which remains a vital piece of legislation to protect small and medium-sized companies without deep pockets or armies of lawyers to fend off countless lawsuits. It gives companies broad leeway to moderate their sites at their discretion without liability and, most importantly, it enables startups to challenge established companies in the free market.
Section 230 has drawn fire from both sides of the aisle. President Biden reiterated his call to reform the law earlier this year. Democratic politicians, including Biden, generally want to reform or revoke Section 230 to force social media companies to moderate more. Republican politicians including former President Trump and Sen. Mitch McConnell have called to revoke it to force social media companies to moderate less. The Supreme Court is also considering hearing cases challenging laws in Texas and Florida that limit platforms’ ability to remove content or prevent them from banning politicians.
When Section 230 was enacted, the web was a vastly different place. Social media was in utero. Platforms of the day did not widely spy on, track, target and manipulate the online activity of their users. Today this business model is the golden goose of mainstream social media giants. Therein lies the problem: Behemoths including Facebook, Instagram, Twitter, TikTok and YouTube have abused the privileges of Section 230. They hide behind this legislation’s liability shield while targeting their users with content that they did not request or seek out.
Rather than get rid of Section 230, we should reform it to allow for free expression and support modestly funded upstarts while holding all companies accountable. Its liability shields should protect content that a web company plays zero role in promoting or amplifying and moderation decisions that are specifically in line with the company’s terms of service.
But liability protection should be removed in four instances: content that a company’s algorithms cause to “trend” in front of users who otherwise would not have seen it; content that has been boosted via a site’s paid-ad-targeting system; content that has been removed that does not violate any of the site’s narrowly stated rules for posting — for example, rules prohibiting targeted harassment, bullying, incitement of violence, spam or doxxing — that were effective the day it was posted; and content that has been recommended or inserted into a user’s feed, algorithmically or manually by the site, that the user has not explicitly opted in to.
Sites can then make the choice: Do they want to engage in targeting and newsfeed manipulation of their users and therefore be held liable? Or do they want to simply provide a platform where users follow content from the friends, groups and influencers whom they choose to connect with and see? Algorithmic recommendations would have to become far more transparent in this scenario. Sites would have to clearly identify what content was boosted via their algorithms and get express permission from users to serve that content to them, giving users more control and transparency.
Additionally, in line with Florida’s justification for its law that may reach the Supreme Court, Section 230 should be amended to require sites “to be transparent about their content moderation practices and give users proper notice of changes to those policies.” Free speech must be protected from politically motivated whims of a site’s management team or employees.
It is also important to identify what boosted content companies won’t be liable for. For example, what happens if a social media company recommends a post about big wave surfing and a kid sees the post, goes out surfing and drowns? Can his family sue the social network? The solution here is to clarify in the updated 230 legislation that companies are liable for specific types of content they promote, such as libel and incitement to violence, and not just any content that precedes a terrible outcome.
Any broader changes to Section 230 will cause a total loss of user privacy online. If web companies are held liable for any and all content on their platforms, they will have to scrutinize everything users post — Big Brother on steroids. Startups would struggle to afford the monitoring expenses or legal fees.
If Section 230 is revoked, to avoid liability web companies would either censor any remotely controversial content or take a hands-off approach and eschew moderation entirely. The former would be Orwellian nightmares devoid of free expression, while the latter would mean cesspools of unpalatable content. That is a lose-lose scenario.
The Supreme Court should uphold Section 230 to continue to protect free expression and encourage competition. Then it’s the job of Congress to make careful reforms. Hold companies accountable for clearly defined content they actively participate in targeting, boosting or censoring. At the same time, set rules to ensure that user privacy is protected and frivolous lawsuits are avoided. This is the best path forward — a compromise.
Mark Weinstein is the founder of the social network MeWe and is writing a book on healing social media, mental health, privacy, civil discourse and democracy.