CDA Section 230’s Asymmetric Accountability Produces Predictable Problems

Ever wonder why Google, Facebook, Twitter, Amazon, Uber, Airbnb, and their Internet Association allies are caught repeatedly enabling so many dreadful activities on their platforms? There’s minimal risk to them in doing so.

Everyone knows if there is no perceived risk for doing certain wrongs for money, many people certainly will do those wrongs, or look the other way while others do those wrongs on their property for the money, because they’ve learned they can get away with it.

It’s not only human nature, but it’s also a fundamental failure of government’s first purpose to protect its citizenry -- when zero-deterrence for certain wrongs on a certain technology is de facto American policy.

In 1996, a well-intentioned Congress passed a balanced Communications Decency Act (CDA) as an amendment to the 1996 Telecom Act, that on one hand would prevent “obscene, harassing, and wrongful utilization of telecommunications facilities” (Title V) and on the other hand, would create legal “protection for ‘Good Samaritan’ blocking and screening of offensive material” (Title II, Section 230).

Together, Congress intended that certain content was harmful, thus it made sense to provide “Good Samaritan” immunity for websites that in good faith removed the types of content the original CDA found harmful.

However, in 1997, the Supreme Court overturned the consumer-protection and responsibility part of the CDA as poorly-written law that violated the First Amendment, but kept the other half of the balanced act, the “Good Samaritan” intermediary liability protection.

This unintended consequence made the symmetric CDA asymmetric, untethering Section 230 from its original moorings intended by Congress.

This unintended asymmetric outcome has created a perverse dynamic.

Rather than the purpose of the “protection for ‘Good Samaritan’ blocking and screening of offensive material” if they helped prevent “obscene, harassing, and wrongful utilization of telecommunications facilities” -- the asymmetric section 230-only CDA provides intermediaries immunity for whatever they do or don’t do about wrongful or criminal-related activity on their websites.

Practically it asymmetrically immunizes willful negligence online that’s not tolerated offline.

The Supreme Court’s asymmetric overturning of the CDA in 1997 effectively has absolved websites from normal accountability for: enabling criminal child sex trafficking like has; and protecting intermediaries like Google-YouTube that hosts known terrorist recruitment videos, and Facebook that live broadcasts torture, rape and murder.

Simply, Congress in the CDA created the special privilege of ‘Good Samaritan’ immunity from liability to ensure special responsibility for communications decency, but in practice the courts have transmogrified Section 230 sadly into a special privilege that comes with no public responsibility.

Section 230 is also asymmetric because it is U.S. only.

The U.S. is the only country in the world that blanket immunizes its companies from responsibility or accountability for what happens over time on their platforms that could harm U.S. citizens or citizens of other countries.

Currently the UK is cracking down on Google-YouTube, Facebook, Twitter, and Amazon expecting these platforms to remove aterrorism-encouraging posts within 2 hours of posting with the goal of preventing such content from being posted at all. Unabated terrorism is compelling the EU to head in that same direction.

The most powerful aspect of Section 230’s asymmetric accountability is that it practically only applies to U.S. online platforms that originated online.

Practically, U.S. companies that conduct much of their business in the physical world and not via their website, may technically enjoy Section 230 immunity for their online traffic, but that immunity practically does not travel to immunity for their offline business, so practically they don’t do anything online that is contrary to the interests and obligations of their predominant offline business.

Section 230 is in the news because of a hearing today on House legislation “Allow States and Victims to Fight Sex Trafficking Act of 2017,” which is a companion to the Senate SESTA bill, “Stop Enabling Sex Trafficking Act” that both seek to amend Section 230 to clarify that Congress never meant to asymmetrically enable sex trafficking of children online – as protected free speech.

It is telling that:

Only Internet Association companies are fighting a tweak to Section 230 to stop the enabling of child sex trafficking online;

Only Google, Facebook and Twitter are being criticized for enabling terrorism recruitment;

Only Facebook live broadcasts torture, rape and murder;

Only Google-YouTube and Facebook have demands for more accountability because advertisers are upset that their brands appear next to brand-unsafe content like terrorist or hate content or ads;

Only Facebook, Google and Twitter are the corporate focus for investigators probing how the Russians manipulated fake news anfake ads to manipulate last year’s election;

Only Google, Facebook, and Amazon have automated suggestions that promote advertising for hate speech or auto-suggest buying chemicals used frequently for making bombs;

Only Uber and Airbnb, have publicly made arbitrage of section 230 immunity from local government sovereignty central to their business model, growth and valuation strategy, and marketing campaigns.

Only Google and Facebook were caught spreading fake news immediately after the Las Vegas massacre.

That sadly is the predictable result of asymmetric accountability.

That perversely is only good for Internet Association members.

Just like one predictably gets the good from what one rewards; one also predictably gets the bad from what one makes unaccountable.

Forewarned is forearmed.


Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google.