Cleland written testimony for the House Subcommittee on Communications and Technology on Legislative sunset of Section 230

 

 

Written Testimony 

of

 

Scott C. Cleland

Macro-Internet Expert & 

Internet Accountability Advocate

 

 

Why Sunsetting Section 230 is Necessary.

 

 Section 230 is the counter-productive policy and law that makes the 

U.S. Internet, Big-Tech, social media, and bad actors unaccountable, which 

enables and incents online fraud, crime, attacks, disinformation, and terrorism

 

 

Before the House Energy and Commerce 

Subcommittee on Communications and Technology 

Hearing on: 

"Legislative Proposal to Sunset 

Section 230 of the Communications Decency Act"

 

May 22, 2024, 10:00am EDT

 


 

 

  1. Introduction

 

Chair McMorris Rodgers and Ranking Member Frank Pallone, thank you for the honor of testifying before the subcommittee on this important matter. 

Concerning this very tough topic, I offer the committee 30 years of Macro-Internet experience, 20K hours of Section 230 domain expertise, and pioneering expertise in Internet Change Research and MacroInternetics®.

2022-2023, I was Founder and Executive Director of the Restore Us Institute, a non-partisan, research and education, non-profit, with a mission: to restore Internet accountability to protect people from online harm. Now, I am founder of Precursor®, a macro-Internet change and unintended consequences consultancy. Previously, I was a former #1 Institutional Investor independent analyst, and was a former Deputy United States Coordinator for Communications and Information Policy in the H. W. Bush Administration. 

 

  1. The Case for Sunsetting Section 230. (43 Evidentiary source links in attachment A.)

 

  1. Twenty-six words in Section 230 did not create the Internet, as many falsely claim. 
  2. In 1974, Vint Cerf/Bob Kahn created the Internet’s enabling TCP/IP protocols. 
  3. In 1989, Sir Timothy John Berners-Lee created the Internet’s enabling World Wide Web.
  4. In 1996, Section 230 did create the “Six Words That Made the Internet Unaccountable” -- “unfettered by Federal and State regulation.”   

 

  1. Section 230 creates unintended consequences. Sunsetting Section 230 does not. 
    1. To “ensure vigorous enforcement of criminal laws” – the reality is less than .05% of cybercrime is prosecuted.

Most know one gets the behavior one tolerates and encourages. Inputs cause outputs. Section 230’s Internet unaccountability policy has enabled and incented the opposite of what Congress and Americans wanted, out-of-control, online fraud, crime, attacks, disinformation, terrorism, etc. See the actual unintended consequences of Section 230’s 1996 clear intent:

  1. To promote decency online through the “Communications Decency Act” – the reality is indecent materials are rife online
  2. To have “no effect on communications privacy law”— the reality is privacy is lost online
  3. To create “a forum for a true diversity of political discourse,” – the reality is lies, fakery, censorship, disinformation, polarization, hate, and violence, are rampant online.
  4. To “empower parents to restrict their children’s access to inappropriate online material” – the reality is there are minimal age-appropriate protections and there are more out-of-control indecent materials than one can imagine. 
  5. To “promote competition and reduce regulation” – the reality is many massive tech monopolizations and drastic de-governing.

 

  1. Sunsetting Section 230 promotes intended consequences.
    1. No one above the law. Sunset ends any notion that the U.S. Internet is separate from America, and it will intentionally restore the ideal that no one or nothing is above the law or outside governing authorities and a civil duty of care in America. 

 

  1. Constitutional authority restored online. Sunset is not regulation it is restoration of Constitution-limited government. Sunset of Section 230 removes the U.S. Internet as a space free from U.S. Constitutional sovereignty, Bill of Rights, rule of law, and a duty of care. It allows the laws of the nation to apply to the U.S. Internet, thus subjecting all players to the appropriate governing authorities. 
  2. Sunset ends special treatment online. Sunset will pave the way for the same rules and rights everyone holds offline to be upheld online. Those acting illegally online are held accountable just as those acting illegally offline are. Unprotected speech offline is unprotected speech online. Sunset of Section 230 is the only way to restore offline online “Equal justice under law.

 

  1. Section 230 was always and remains unnecessary. 

Big Tech and many Internet companies have always had the opportunity, freedom, and means to buy private liability insurance or operate with reasonable care like every other company, industry, and citizen has a legal duty to do. And they are free to choose to innovate and compete based on legality, reason, care, and integrity.

 

  1. Section 230 is a Trillionaire-Welfare legal aid subsidy for the least needy. 
    1. For perspective, consider that the four biggest defenders and beneficiaries of Section 230 are trillionaire entities of people -- Alphabet, Meta, Amazon, and Microsoft – which command an average market capitalization wealth of over two trillion dollars. Together they have $1.3t in annual revenues which is 4 times more than Congress’ annual budget and together have ~$330b in cash on hand that could pay for Congress’ annual budget. 
    2. Precursor’s 2018 in-depth analysis estimated that cumulatively over time, Section 230 was a ~$1.3t legal aid subsidy to Big Tech at the expense of American taxpayers and citizens.  
  2. Section 230 Is Antiquated. The U.S. has gone from being the world’s leader in setting Internet policy and law, to being the world’s laggard today. America is the only major nation yet to modernize its policy on Internet conduct. Section 230 has enabled Big Tech to be the world leaders at the direct expense of America, Americans, and the U.S. Government.
  3. Section 230’s Myopic Focus Furthers National Neglect. Section 230 addresses only one type of misconduct on the Internet – defamation liability for false statements – neglecting the dozens of other serious ubiquitous harms to people, minors, and property. As a result, five administrations, fourteen congresses, and seventeen Supreme Court justices, together, have neglected to protect America, Americans, minors, and property from all other online harms and crimes for 28 years!
  4. Makes Big-Tech Accountable. Section 230’s anarchic Internet policy is the Houdini superpower that enables Big-Tech to routinely escape responsibility for their actions and anticompetitive abuses. Over time, Section 230’s unfettered intermediary impunity has in fact established an online regime of Big-Tech, by Big-Tech, for Big-Tech with impunity to censor, spread disinformation, and turn a blind eye to incitement, hate, and violence. Privileged treatment causes polarization that undermines democracy and divides the nation.
  5. America, Americans, and Minors are much worse off since before Section 230. (Evidentiary links found in attachment 2.)
    1. They are much less secure, safe, and protected than before, given it prohibits any governing precautionary principle. 
    2. America’s economy, commerce, and markets are more unhealthy, unfair, dishonest, unstable, and anti-competitive than before.   
    3. America’s society is much less healthy and more dysfunctional/dystopian than before.
    4. Americans/minors live dehumanized with fewer rights, freedoms, and morals than before. 

 

  1. Section 230’s core legal precedent Zeran v. AOL, is fraudulent. It is clearly not Congress’ textual intent, but judge-made, extreme law. (Evidentiary links found in attachment 3.) 
    1. Congress’ statutory intent in text isn’t anything like what Zeran v. AOL represents it to be.

 

  1. Zeran v. AOL misrepresents that Congress thinks common law threatens free speech.
  2. Zeran v. AOL’s hijacks Congress’ intent to protect people from offensive material.
  3. Court misrepresents congress wanting “immediate comprehensive effect,” & scope.
  4. Court made up a rationale for absolutist tech tort reform – absolutist free speech.
  5. Why did Congress in the Telecom Act, CDA, or Section 230 never use the sixteen key terms Zeran did to make its case? & Why did Zeran v. AOL use nine terms repeatedly when Congress did not use them at all!? The obvious answer is Zeran v. AOL is judge-made law not Congress’ intent.
  6. Zeran claims Congress intended tort reform when it never mentioned it.
  7. If Congress’ aim was to “promote unfettered speech on the Internet” why does Section 230 fetter it?
  8. If Congress’ true purpose is to promote unfettered speech, why did the CDA fetter a new type of speech, i.e., “coercion and enticement of minors?”
  • Zeran v. AOL offends the U.S. Constitution’s separation of powers & checks and balances. 
  1. Abuse of power. The U.S. Constitution’s first sentence states only congress legislates not the judiciary. A judge autocratically legislated what 535 members of congress do.
  2. Sweeping subversion of the Seventh Amendment. Zeran v. AOL subverts the Seventh Amendment by denying Americans’ Constitutional right to trial by jury.
  3. Sweeping subversion of “the rules of common law” in the seventh amendment.
  4. Sweeping subversion of the Supreme Courts authority to decide what types of speech are protected or unprotected speech.

 

  1.      Conclusion
  2. Holistic technology/policy causes holistic problems, requiring a holistic solution -- sunset. The only symmetrical holistic solution is the sunset of Section 230.
  3. Only sunset can restore what Congress unwittingly took away in 1996 Internet policy – sovereignty, constitutional authority, rule-of-law, duty of care, and access to justice over the U.S. Internet. Practically going forward that means: Same rules and rights offline/online. Illegal offline is illegal online. Equal justice under law.
  4. Only sunset enables Americans to go from not having, to having, rights, recourse, and access to justice online. U.S. policy would flip from protecting technology from people, to protecting people from technology. Big tech and Internet technology would go from not being subject, to being subject, to rule-of-law and a duty-of-care like everyone else.
  5. Only sunset keeps the Internet good (legal conduct) and fixes the Internet bad (illegal conduct.) 

 

 

  1. Attachments including 221 Source Links, Evidence, & Detail.   

 

  1. The Policymaker Case for Sunset of Section 230. PDF
    • Scott Cleland, Restore Us Institute, RUI Research Paper #9 February 28, 2023
  2. Are we better off now than before Section 230? If not sunset it. PDF
    • Scott Cleland, Restore Us Institute, RUI Research Paper #10 March 7, 2023
  3. Section 230 precedent is Trojan Horse tech torr reform not Congress’ intent. 
    • Scott Cleland, Restore Us Institute, RUI Research Paper #13 May 23, 2023 PDF

 

  1. Attachment: The Policymaker Case for Sunset of Section 230 

(Has 43evidentiary source links)

Section 230 is the counter-productive U.S. policy and law, that makes the

 U.S. Internet, Big-Tech, social media, and online bad actors unaccountable.

by Scott Cleland

What is Section 230 and why should Americans care?

In a nutshell, Section 230 of the 1996 Communications Decency Act is America’s only policy and law governing conduct on the Internet

When Congress established “the policy of the United States” that the Internet and its services be “unfettered from Federal and State regulation,” the Internet was a bulletin board with dialup speed that was used by early adopters 30 minutes a month.

Section 230 policymaking was designed to encourage the buildout and adoption of the nascent Internet and it accomplished that objective. However, as the Internet matured to be an all-purpose platform, there has been minimal government oversight of this broad de-governing policy experiment. This unaccountable policy experiment of Internet unaccountability has spawned many unintended consequences, including lost privacydishonest dealingsabuse of minors, extreme polarization, monopolizations, cyberattacks, cybercrime, and more.

Indeed, what some characterize as a ‘Wild West’ Internet policy has morphed way beyond simply minimizing regulation and a “hands-off” approach by government. Indeed, it is no rule of law, no policing to protect the public, and no accountability online. This policy has resulted in a form of government-approved anarchism, on autopilot since 1996. One could argue it also has resulted in government-approved amoralism, which not only has minimal concern for right and wrong, but which denies the legal duty of care online that every American can expect offline.

Is Section 230 an ‘extreme machine’ of unintended consequences?

Yes! Most know one gets the behavior one tolerates and encourages. Inputs cause outputs, and the inaction permitted by Section 230 has created a swelling monsoon of unregulated and often illegal activity online. Section 230’s intent was:

  • To “ensure vigorous enforcement of criminal laws” – the reality is less than .05% of cybercrime is prosecuted.
  • To promote decency online through the “Communications Decency Act” – the reality is indecent materials are rife online
  • To have “no effect on communications privacy law”— the reality is privacy is lost online
  • To create “a forum for a true diversity of political discourse,” – the reality is lies, fakery, censorship, disinformation, polarization, hate, and violence, are rampant online.
  • To “empower parents to restrict their children’s access to inappropriate online material” – the reality is there are minimal age-appropriate protections and there are more out-of-control indecent materials than one can imagine. 
  • To “promote competition and reduce regulation” – the reality is many monopolizations and drastic de-governing.

Why sunset Section 230? 

As the Internet evolves, so must the law and policy regarding it. Keeping Section 230 in place only paves the way for Big Tech to steamroll over elected officials, our judicial system, and any source of accountability. Here, I have identified the “Big 8” reasons why Section 230 must be sunsetted: 

  1. Unnecessary. Internet companies are free to buy private liability insurance or operate with reasonable care like everyone else has a legal duty to do. And they can innovate and compete based on reason, care, and integrity.
  2. Antiquated. The U.S. has gone from being the world’s leader in setting Internet policy and law, to being the world’s laggard in 2023. America is the only major nation yet to modernize its policy on Internet conduct.
  3. National Neglect. Section 230 addresses only one type of misconduct on the Internet – defamation liability for false statements – neglecting all other harms. As a result, five administrations, fourteen congresses, and seventeen Supreme Court justices, together, have neglected to protect America, Americans, and minors from all other online harms and crimes for 28 years!
  4. Makes Big-Tech Accountable. Section 230’s anarchic Internet policy is the Houdini superpower that enables Big-Tech to routinely escape responsibility for their actions and anticompetitive abuses. Over time, Section 230’s unfettered intermediary impunity has in fact established an online regime of Big-Tech, by Big-Tech, for Big-Tech with impunity to censor, spread disinformation, and turn a blind eye to incitement, hate, and violence. Privileged treatment causes polarization that undermines democracy and divides the nation.
  5. Depolarizing. Sunset is the only constitutional, fair, and accountable solution for Big-Tech/social media’s unfettered intermediary impunity. A rewrite of Section 230 would put Congress in the untenable position of adjudicating the Bill of Rights. Only sunset prevents Congress from facilitating censorship and the spread of disinformation.
  6. Willful Blindness. Most of Big Tech and its paid proponents plead Section 230 is an Internet essential that harms no one. Their scripted silence about Section 230’s many harms hiding in plain sight is, at best, a collective half-truth, and at worst, widespread willful blindness. Research and evidence by the Restore Us Institute actually reveals that America and Americans are worse off now than before Section 230’s unfettered intermediary impunity. The fact is Section 230 has subverted the Constitution, public safetynational securityjustice, religion, and liberties/rights.
  7. Internet Injustice. Today, Congress’ Section 230 precedents disenfranchise the civil judiciary’s adjudication of Internet illegal conduct cases to legitimately determine truth vs. lies, fake vs. authentic, fair vs. unfair, and legal vs. illegal. That’s because it preempts normal testimony under oath at risk of perjury, “to tell the truth, the whole truth and nothing but the truth.” Congress has unreasonably empowered random unvetted private actors with unfettered intermediary impunity to mediate and meddle with all of Americans’ online interactions and interrelationships arbitrarily and self-servingly for profit, politics, power, surveillance, influence, and dominance.
  8. Existential Enemy. Government officials have sworn to “defend the Constitution…against all enemies… Section 230 is an existential enemy of the Constitution because its de facto de-governing subverts the government’s sovereignty, authority, and purposes.

Does Section 230 sunset produce intended consequences? 

Yes. The sunset ends any notion that the U.S. Internet is separate from America, and it will intentionally restore the ideal that no one or nothing is above the law or outside governing authorities and a civil duty of care. 

Sunset purposefully restores America’s government “of the people, by the people, for the people,” in intentionally restoring an American people primacy principle. It will help prioritize humanity over technology, people over profit and the need to protect minors over adults.

Conclusion

Sunset is not regulation it is restoration of Constitution-limited government. Sunset of Section 230 removes the U.S. Internet as a space free from U.S. Constitutional sovereignty, Bill of Rights, rule of law, and a duty of care. It allows the laws of the nation to apply to the U.S. Internet, thus subjecting all players to the appropriate governing authorities. 

Sunset ends special treatment online. Sunset will pave the way for the same rules and rights everyone holds offline to be upheld online. Those acting illegally online are held accountable just as those acting illegally offline are. Unprotected speech offline is unprotected speech online.

Sunset of Section 230 is the only way to restore offline online “Equal justice under law.

 

  1. Attachment 2: Are we better off now than before Section 230? 

If not sunset it. (With 124 evidentiary source links)

By Scott Cleland       

Are America, Americans, and minors better off now than before Section 230 of the 1996 Communications Decency Act? In today’s trying times, it’s a fair and necessary question to ask. 

In 1996, Section 230 made it U.S. policy that the Internet and its services be “unfettered by Federal and State regulation” and made it law that Internet services (like Big-Tech and social media today), have immunity from civil liability for how they intermediate others’ interactions online. 

Reason and evidence will reveal whether Section 230 has made us better or worse off.

The Case For Better Off Now. 

U.S. Internet policy/law succeeded at accelerating Internet adoption and buildout of broadband infrastructure. Now in America, everyone everywhere can conduct everything over the Internet. It makes most things and tasks in life, work, and play, more convenient, efficient, and lower cost. 

We now can communicate and stay connected with more people in more ways, more efficiently and economically than ever before. Everyone now has immediate and exceptional access to much of the world’s information, improving research, learning, education, science, and innovation. We also can enjoy the greatest variety of entertainment ever. 

Ecommerce, transactions, payments, donations, online services, delivery, hiring, job searching, travel, remote learning/work, and more, now are more convenient, efficient, and lower cost. The Internet also has yielded many transformative innovations. 

The Case Against Better Off Now.   

Today, the Internet and its unaccountability policy is an ongoing 1996 utopian, experiment of minimal accountability online. This ‘Wild West’ Internet policy approves anarchism in abandoning the Constitution, rights, rule-of-law, and duty-of-care online. It approves amoralism also in not legislating, administrating, or adjudicating right vs. wrong, or legal vs. illegal, online. 

For twenty-seven years, five administrations, fourteen congresses, and seventeen Supreme Court Justices, together, have neglected to: protect Americans and minors from online crimes and harms; provide normal policy oversight; or update outdated Internet policy, as other major nations have. 

America, Americans, and minors are much less secure, safe, and protected than before.

In 1996, U.S. Internet policy surrendered America’s sovereignty and government authority online. Since then, this reckless policy of absolutist free flow of data into the U.S. has continuously and unwittingly aided and abetted the attacks of our top adversaries China, Russia, and cybercriminals, with impunity. As a result, at will, China has stolen countless U.S. national security and trade secrets. And Russia has disrupted America at will via rampant ransomware, cybercrime, and election interference.

Per the CDC, seventy thousand Americans have been killed annually by out-of-control fentanyl poisoning coming from rampant illegal foreign pharmacies online, via an unfettered fentanyl supply chain flowing from China through Mexican cartels who then sell through U.S. social media. 

By now most Americans have been victims of cyberattacks, cyberbullying, or cybercrime, because only .3% of cybercrimes are prosecuted. Warren Buffet calls cybercrime mankind’s #1 problem and cyberattacks a bigger threat than nuclear weapons. Americans most worry about cybercrimes. 

Online, no one and nothing in America is safe or secure because there are minimal market forces or government requirements to be safe and secure. That’s why the NSA, CIA, DOD, DOJ, DHS, OPM, White HouseGoogle, FacebookAmazon, Apple, Microsoft, et al have all been hacked; and hackers can hack planes in flight, vehicles on the road, and ships at sea. U.S. unilateral surrender of its sovereign authority online has made America its own worst enemy for 27 years.

America’s economy, commerce, and markets are more unhealthy, unfair, dishonest, unstable, and anti-competitive than before.    

At first, Congress expected Internet unaccountability policy to spur growth of Internet adoption and broadband infrastructure, which it did. However, it quickly descended to slower US. economic growth and less U.S. prosperity via parasitic accountability arbitrage business models. Comparing the pre-Internet period of 1960-2000 to the 2000-2020 Internet period, U.S. GDP’s average annual growth has fallen by ~half.  An online/offline accountability double standard is an unfair playing field that has manifested many monopolizations of what otherwise would be competitive markets. 

Internet unaccountable parasitic business models have also yielded extremely disproportionate commercial prosperity. From 2012-2021, the revenue growth of Amazon, Google, and Facebook, outpaced the other 497 companies in the Fortune 500, by 2,160%. The accountability arbitrage of the parasitic three enabled a massive revenue transfer from their parasite hosts. The parasitic three companies outgrew USGDP by 1,200%, which largely came at the expense of the other Fortune 497 companies that lagged the U.S. economy by -42%, per BEA and Fortune 500 data.       

Internet unaccountability policy tolerates and encourages dishonesty and corruption online and serially has favored, fostered, and fomented a ~$10 trillion, systemic fraud factory, crime wave, and accountability-arbitrage racket: Enron fraudWorldCom fraudDotcom crashfiber fraudNapster piracyGrokster piracyfinancial crisis fraudcryptocurrency fraudunicorn fraudblockchain fraud, Non-Fungible Token fraud Robinhood fraudDecentralized Finance fraudCryptocurrency crashFTX fraud contagionFTX crypto-crashAI voice scams, etc. Internet policymakers can no longer ignore that unaccountable commerce/finance cause out-of-control, crime, fraud, and theft.   

America’s society is much less healthy and more dysfunctional and dystopian than before.

Americans’ trust in honesty, truth, and elections has declined in this ‘Internet Upset Era.’ Americans’ average confidence in major U.S. institutions has fallen 33% from 2000-2021, per Gallup. Social media polarizes people, making Americans more politically polarized than ever. From 2000-2020, U.S. political partisanship has grown 160% per Pew Research. And the U.S. Constitution’s objectives are not flourishing as they did before.

America’s legal double standard of accountability offline, but none online, has proved to be a democracy destroyer and an extreme machine that incites polarization, division, hate, rage, and violence. Profit over people algorithms promote ‘anger’ five times more than ‘likes.’ These anger algorithms aided and abetted the incitement of America’s unpeaceful 2021 transfer of power. Social media fame also has incited a 300% increase in U.S. mass shootings from thirty-three 1982-2002 to a hundred 2002-2022 per Statista. Mob morality now rules online.

Adult church membership has plummeted by a third. Confidence in organized religion has plummeted by a quarter. Americans are addicted to Internet technology, and becoming more depressedlonely, and manipulated. The moral health of the family, marriage, parenting, and children is no longer flourishing. Now there is much less cultural concern for what is age-inappropriate online -- confounding parents. Social media is addictive and causing teen depression, self-harm and suicides, especially for teenage girls per CDC data.

Americans/minors live dehumanized with fewer rights, freedoms, and morals than before. 

U.S. Internet unaccountability policy dehumanizes Americans. It protects technology from harms, by prohibiting protection of people from technology harms. It grants technology impunity -- freedom to harm, control, and rule over people with no rights, recourse, or access to justice. 

Online people are not humans, citizens, or customers, they are dehumanized addicted ‘users.’ They are inanimate ‘data’ and ‘products,’ commercial chattel bought and sold with impunity by data brokers, without meaningful human consent, rights, protections, privacy, or security. They also are indentured Americans online, abandoned by their government as disenfranchised commercial captives of one-sided legal terms and indentures. 

They are no longer citizens with rights, privacy, or control of their identity, dignity, reputation, and security online. Minors are defenseless prey fed to online predators, and minimally protected as lab rats to surveil, test, addict, and depress, and lambs to abuse and traffic with impunity. 

The most corrupting, and endangering effect of U.S. Internet unaccountability policy may be how it holistically overturns how we all should interact with one another. Offline 92% of us embrace and follow the Golden Rule of ‘Treat others as you want to be treated’ that every major religion and ethical tradition believes in some form. Internet unaccountability policy is like a ‘Rotten Rule’ of ‘do whatever you want to others’ online, i.e., the unfettered freedom/impunity to harm others. 

Conclusions: 

  1. Section 230 is an unmitigated National Nightmare and Digital Disaster, requiring sunset. 

Reason, and the evidence sample above, reveal Americans, minors, and America are much worse off than before Section 230 became law and official U.S. Internet policy in 1996. 

That’s because: America, Americans, and minors are much less secure, safe, and protected; our economy, commerce, and markets are more unhealthy, unfair, dishonest, unstable, and anti-competitive; our society is much less healthy and more dysfunctional and dystopian; and individually we live more dehumanized with fewer rights, freedoms, and morals. 

This rotten reality requires sunset to mitigate the problems and harms Section 230 has caused. 

  1. Section 230’s extreme anti-government policy is extremely bad government. 

In 1996, Congress overwhelmingly made it U.S. policy that a new universal technology, and all its applications and companies should forever be “unfettered by Federal and State regulation,” i.e., above the law and not subject to the Constitution, governing authorities, rule-of-law, a duty of care, and other normal societal responsibilities/accountabilities. 

This has the government endorsing and modeling extreme governmental assumptions. 

It effectively asserts there is no good in government and never will be, in de facto assuming people have no sin nature, and that there are no enemies, criminals, attackers, terrorists, threats, or risks that warrant government protections, defenses, deterrents, and rights. 

It teaches the public to see the Government as the #1 problem facing America, as they do today, per a 2023 Gallup poll

It essentially teaches the American public to distrust our Federal, State, and local governments. No surprise U.S. public trust in Government has been consistently lower in the Internet Era than any other extended period in the last sixty years per Pew Research

It also puts all elected/appointed government officials and employees in the untenable position of ignoring their sworn oath of office“to support and defend the Constitution of the United States against all enemies foreign and domestic…” 

Sunsetting Section 230 is the best way to restore good U.S. Internet policy and good government. 

  1. Holistic technology/policy causes holistic problems, requiring a holistic solution -- sunset.

A holistic all-purpose technology ungoverned by a holistic Internet unaccountability policy, naturally causes holistic Internet harms like those catalogued above, that in turn naturally require a symmetrical holistic solution to the problems/harms Section 230 has been causing broadly for 27 years. The only symmetrical holistic solution is sunset of Section 230. 

Only sunset can restore what Congress unwittingly took away in 1996 Internet policy – sovereignty, constitutional authority, rule-of-law, duty of care, and access to justice over the U.S. Internet. Practically going forward that means: Same rules and rights offline/online. Illegal offline is illegal online. Equal justice under law.

Only sunset enables Americans to go from not having, to having, rights, recourse, and access to justice online. U.S. policy would flip from protecting technology from people, to protecting people from technology, i.e., people primacy policy. Big tech and Internet technology would go from not being subject, to being subject, to rule-of-law and a duty-of-care like everyone else. Sunset keeps the Internet good (legal conduct) and fixes the Internet bad (illegal conduct.) 

 

  1. Attachment: Section 230 is Tech-tort reform not Congress’ intent. 

(With 54 evidentiary source links.)

By Scott Cleland 

America and Americans have been badly deceived and cheated for a quarter century. 

Section 230’s U.S. Fourth Circuit Court of Appeals precedent, Zeran v. AOL, adopted by most  federal circuit courts to justify denying online victims/plaintiffs access to justice, turns out to be a modern-day, tragic Trojan Horse trick

When Zeran v. AOL misrepresented Section 230’s intent in 1997, it was assumed and heralded to be a legitimate representation of Congress’ intent and scope for Section 230 and a faithful defense of the Constitution. The evidence indicates it is not, but is de facto judge-made, absolutist, tech-tort reform lawe.g., “…Congress' desire to promote unfettered speech on the Internet must supersede conflicting common law causes of action.”

As it turns out, Zeran v. AOL has de facto unconstitutionally legislated: a bogus absolutist problem that common law justice threatens free speech online; a bogus purpose of ensuring absolutist “unfettered speech” online;” the bogus absolutist “immediate comprehensive effect” and scope of Section 230 online, and the bogus task of imposing absolutist tech-tort reform. 

This autocratic abuse of power, denial of democracy, corruption of the Constitution, and deception of the people it governs, calls for a rethink of Section 230, and its purpose, problems, and solutions by each branch of the U.S. Government, the trial bar, and the public. 

This misrepresentation and power grab, strengthens the case for sunset of Section 230 and its suspect precedent progeny, and it encourages court challenges of Zeran v. AOL from all quarters. 

It is no coincidence or surprise that the inputs of such extremes, fraud, and half-truths have yielded the outputs of an Internet rife with so many extremes, fraud, lies, and mistrust. Fraud in is fraud out.

This piece and its evidence will shed light on how Zeran v. AOL has been and is a misrepresentation of Congress’ Section 230 intent and a corruption of the Constitution’s separation of powers and checks and balances. 

Why is this tragic trick critically relevant today?

  • Congress is struggling to legislate accountability for Big-Tech/social media problems caused by judge-made, absolutist, tech-tort reform that it never considered, wrote, passed, or intended. 
  • The Supreme Court is struggling in serially punting ruling on the scope of Section 230 since no entity has yet to challenge the legitimacy or constitutionality of Zeran v. AOL precedent.
  • The Judiciary is struggling to ensure citizens’ constitutional right to a jury trial because judge-made, absolutist, tech-tort reform broadly impedes online victims’ access to justice. 
  • The Executive Branch is struggling to clean up the Big-Tech/social-media unaccountability mess caused by absolutist executive and judicial activism and Congress’ legislative inaction. 
  • People arestruggling from mass-victimizations of online harms without protection or recourse.
  • Plaintiff Trial lawyers are struggling to beat Section 230’s “Big-tech get-out-of-court-free card,” because they have yet to challenge the legitimacy and constitutionality of Zeran v. AOL.

How is Zeran v. AOL precedent not Congress’ intent? 

  1. Congress’ statutory intent in text is not anything like what Zeran v. AOL represents it to be. 

Section 230: In 1996, Congress named its intent: “Protection for ‘Good Samaritan’ blocking and screening of offensive material.”

The Communications Decency Act as passed was: “To protect the public from the misuse of the telecommunications network and telecommunications devices and facilities.”

The Telecommunications Act of 1996: intent was: “To promote competition and reduce regulation … and encourage rapid deployment of new telecommunications technologies.”  

Zeran v. AOLimagined Congress’ Section 230’s intent to be: “Congress' desire to promote unfettered speech on the Internet must supersede conflicting common law causes of action.” “…“The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, [is] simply another form of intrusive government regulation of speech.”  

  1. By self-acclamation, Zeran v. AOL misdirects Congress’ intent ~20 times: 

Congress clearly expressed its intent…” (2 times) “Congress immunized…” “Congress acted…” Congress recognized…” (2 times) “Congress further stated…” “Congress made a policy choice…” “Congress’ purpose…” “Congress considered…” (2 times) “Congress enacted Section 230 to…” “Congress enacted § 230's broad immunity…” “Congress intended…” “Congress speaks directly to the issue …”  “Congress has indeed spoken directly…” “Congress allowed for…” “Congress' desire to promote…” “Congress has ‘unmistakably ordained…” “Congress' command is explicitly stated…” (2 times) “Congress has expressly prescribed…” “Congress' intent that…” “Congress decided…” 

  1. Zeran v. AOL misrepresents Congress thinks common law threatens free speech.

“Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.”

“The specter of tort liability in an area of such prolific speech would have an obvious chilling effect.”

The imposition of tort liability… is “another form of intrusive government regulation of speech.” 

“Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.” 

  1. Zeran v. AOL’s hijacks Congress’ intent to protect people from offensive material.

“…Congress' desire to promote unfettered speech on the Internet must supersede conflicting common law causes of action.” 

  1. Court misrepresented congress wanted “immediate comprehensive effect,” & scope. 

 

“Here, Congress decided that free speech on the Internet and self-regulation of offensive speech were so important that Section 230 should be given immediate, comprehensive effect.”

Congress enacted Section 230's broad immunity.”

  1. Court made up a rationale for absolutist tech tort reform – absolutist free speech.  

“…Congress' desire to promote unfettered speech on the Internet must supersede conflicting common law causes of action.” 

“The purpose of this statutory immunity is not difficult to discern.” 

Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” 

“… Specifically, Section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role.”

Congress clearly expressed its intent that Section 230 apply to lawsuits.” 

Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.”

 

  1. If Zeran v. AOL truly represents Congress’ intent and not the courts intent… 

 

Why did Congress in the Telecom Act, CDA, or Section 230 never use these terms! 

“speech,” “freedom,” “freedom of speech.”, “freedom of expression,” “First Amendment,” “Internet speech,” “immunity,” “immunize,” “intermediary,” “tort,” “tort liability,” “tort reform,” “lawsuit,” “common law,” or “self-regulation.” 

 

Why did Zeran v. AOL use these terms repeatedly when Congress did not use them! 

“speech” 17 times, “immunity” 8 times, “immunize” 4 times, “tort” 13 times, “lawsuits” 5 times, “common law” 6 times, “self-regulated” 4 times, “freedom of Internet speech” once, and “unfettered speech” once. 

 

The obvious answer is Zeran v. AOL is judge-made law not Congress’ intent.

 

  1. If Congress intended Section 230 to be tort reform, it would have said so in the law like it did in the Telecommunications Act of 1996: “Cable Act reform” and “Regulatory reform.” It did not. 

 

  1. If Congress’ aim was to “promote unfettered speech on the Internet” Why does 230 fetter it?

 

Why does a central provision of Section 230 that encourages ‘Good Samaritan’ blocking and screening of offensive material,” Section 230(c)(2)(A), encourage the fettering of “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material online when Zeran v. AOL’s purpose is to “promote unfettered speech on the Internet?” 

 

  1. If Congress’ true purpose is to promote unfettered speech, why did the CDA fetter speech? 

The provision of the Communications Decency Act (CDA) that directly precedes Section 230 in the law as passed is “Section 508 Coercion and Enticement of Minors,”  which rules that “Whoever… knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years to engage in prostitution or any sexual act for which any person may be criminally prosecuted, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.’’ This CDA speech-relevant provision survived the Supreme Court’s 1997 precedent Reno v. ACLU and it remains law in 18 USC 2422

Congress intended in Section 230 that some speech like speech integral to criminal conduct is fettered because in Section 230 it made it U.S. policy “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.” The Supreme Court made obscenity unprotected speech in 1973. 

  1. Zeran v. AOL offends the U.S. Constitution’s separation of powers & checks and balances. 

 

Abuse of power. The U.S. Constitution’s first sentence makes it clear congress legislates not the judiciary. “All legislative powers herein granted shall be vested in a Congress of the United States.” 

There is much evidence above that indicates that Zeran v. AOL, the judicial precedent that most affects the Internet that everyone uses to do everything everywhere for life, work, and play, is constitutionally suspect precedent and judge-made law affecting everyone’s speech and conduct. This gross abuse of power has helped disrupt and corrupt much of American government, business, work, and life. 

A judge autocratically legislating, doing what 535 members of congress do under the constitution, deny democracy and violate the Constitution’s separation of powers.

Sweeping subversion of the Seventh Amendment. Zeran v. AOL does one thing near universally, it is obeyed by most courts to routinely deny complaints in summary judgment before discovery. This assaults and offends the Seventh Amendment by denying American Citizens’ Constitutional right to trial by jury. 

Seventh Amendment Text: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

Sweeping subversion of “the rules of common law” respected in the 7th Amendment.  Zeran v. AOL’s judge-made, absolutist, tech-tort reform corrupts the rules of common law by making everything online “unfettered speech” which generally ignores and condones vast swaths of illegal conduct online.    

Subversion of Supreme Court’s authority. Zeran v. AOL’s operative precedent for most things Internet is de facto promoting and enforcing “unfettered speech” which broadly subverts rule of law, law and order, and justice, in confusing everyone about whether Zeran v. AOL is the last word on online speech or are SCOTUS precedents on protected and unprotected speech the last word? 

In touting and enforcing the promotion of “unfettered speech,” throughout the Federal and State judicial systems it muddies, confuses, and subverts the Supreme Court’s precedents that make some types of speech unprotected by the First Amendment. 

It is no coincidence that much of the worst conduct and disruptive behaviors, like the ones directly below routinely occur on the Internet because people think there is no accountability online, encouraged, and advanced by Zeran v. AOL’s “promotion of unfettered speech” via judicial absolutist activism. 

Consider the eight types of speech the Supreme Court has ruled in precedents that are unprotected speech, i.e., not free speech: obscenity, defamation, fraud, incitement, fighting wordstrue threatsspeech integral to criminal conduct, and child p0rnography

How could this happen?

Context matters. 

Chief Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals wrote the 1997 Zeran v. AOL opinion, in which Judge Russell and Chief Judge Boyle joined. This Federal Appeals court is headquartered in Richmond Virginia. Chief Judge Wilkerson, a Reagan appointee, was raised in Richmond and was Chief Judge from 1996-2003. He was Editorial page editor, Norfolk Virginian-Pilot, 1978-1981.

Nationally, and especially locally in Richmond, tort reform was a very big issue in 1997 given that the national tobacco settlement was being negotiated in 1997 and was settled in 1998 for $206 billion dollars over 20 years. Then Richmond was known as the Tobacco Capital of the United States, as it was the headquarters for the top four tobacco companies.   

In 1997 the U.S. Chamber of Commerce was launching a $40m national public relations, media, and lobbying campaign to demonize plaintiff trial lawyers for high lawyer fees, and to call for major tort reforms, especially concerning product liability. 

The campaign was strongly backed and funded by two powerful groups, the tobacco companies based in Richmond and TechNet/Silicon Valley interests

Conclusion: 

The evidence here has exposed Section 230’s domineering precedent, Zeran v. AOLas de facto judge-made, absolutist, tech-tort reform law that subverted Congress’ intent in 1996 and still subverts congress’ bipartisan intent for delivering Big-Tech/social-media accountability, rule of law, and duty of care today. 

This audacious autocratic abuse of power, corruption of the Constitution, denial of democracy, and deception of Americans, calls for a rethink of Section 230, and its purpose, problems, and solutions by each branch of the U.S. Government, the trial bar, and the public. 

This unfettered fraud strengthens the case for sunset of Section 230 and its corrupted precedents, and it encourages court challenges of Zeran v. AOL from all quarters. 

The Supreme Court, after neglecting to oversee/review Section 230 cases from 1997-2022, and after punting on two cases that implicate Section 230’s scope in 2023, the Supreme Court must step up and decide if Zeran v. AOL meets their “Equal Justice Under Law” standard or not.   

Forewarned is forearmed.