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Changing Section 230 Would Strengthen the Biggest Tech Companies

Holding internet platforms liable for certain content would harm internet users.

Fidji Simo, director of product at Facebook, spoke about the company’s dating app in April, which was introduced after a change in Section 230.Credit...Stephen Lam/Reuters

Mr. Harmon is the activism director at the Electronic Frontier Foundation.

Who benefits from Section 230, the federal law that shields online platforms from liability for content posted by users? According to commentators and politicians, Section 230 helps only large tech companies. But the biggest beneficiaries of Section 230 are internet users, not internet companies. Before Congress undermines Section 230, it must understand how users rely on it — and how the internet would change without it.

Section 230 — originally enacted by the Communications Decency Act and also referred to as C.D.A. 230 — says that internet platforms will not be held liable in court for things that their users say online. It has some exceptions — notably, it does nothing to shield platforms from liability under federal criminal law — but at its core, the law is a simple, common-sense policy: If I go online and post something illegal, I should be the one held responsible, not the message board where I posted it.

Without Section 230, the internet would be a more confined place, one with fewer spaces where we can all gather, socialize and share ideas. Social media platforms like Twitter, Facebook and Reddit wouldn’t exist — at least in their current form — and neither would knowledge-sharing sites like Wikipedia, the Internet Archive and Stack Exchange. If these companies were held liable for everything their users posted, the risk of litigation would make running them extremely dangerous.

If lawmakers weakened Section 230, they wouldn’t just be threatening those spaces — they would risk kicking some people completely off the internet. Without Section 230, platforms would effectively have to determine the risk of a user before that user would ever be allowed to speak. History shows that when platforms clamp down on their users’ speech, the people most excluded are the ones most excluded from other aspects of public life, too. Facebook’s “real names” policy kicked a Native American, Shane Creepingbear (his real name), off the platform. Under their policies on violence, both Twitter and YouTube suspended the accounts of Egyptian journalist Wael Abbas, who’d used the platforms to report on police brutality. Again and again, marginalized communities bear the brunt of heavy-handed censorship by platforms.

While Section 230 has gotten more attention this year than ever before, it’s been stubbornly mischaracterized as a handout to tech companies. Representative Nancy Pelosi recently called the law a “gift” to Big Tech, implying that Congress should gut the law in order to fight the increasing dominance of the five largest tech companies. Others have attempted to tie Section 230 to the spread of hate speech online, though the connection between the two is flimsy at best: Since hate speech is not a defined crime in the United States, Section 230 has no bearing on whether websites are allowed to host it.

Conservatives have their own arguments for getting rid of Section 230, insisting that large social media companies systematically censor conservative voices and should have their Section 230 immunity revoked as punishment. But the evidence suggests that scrapping Section 230 would cement those companies’ market status.

Google, Facebook and Twitter are likely to survive any change to Section 230 that Congress passes. Those companies have the staff to review users’ posts at scale and the legal resources necessary to comply with future changes to Section 230. Facebook has bragged to Congress about the amount of illegal material it removes before anyone sees it, a standard very few other companies could meet. Future legislation to erode Section 230 might do nothing more than further harden Facebook and Google from meaningful competition.

Congress already began to undermine Section 230 last year in the form of the so-called Allow States and Victims to Fight Online Sex Trafficking Act, or Fosta. The only change to Section 230 in its 23-year history, Fosta holds a website responsible if it “assists, supports, or facilitates” sex trafficking. The law’s broad wording has forced web platforms to become more restrictive than ever in what types of posts they allow.

Fosta was opposed by sex trafficking experts, sex worker advocates, civil liberties activists and many others who believed that it would put sex workers’ lives in danger. They argued that sex workers would have to transition to dangerous street-based work, and that harm-reduction resources that sex workers rely on would go offline. Both predictions have come true.

Who supported Fosta? Big Tech. And here’s a hint as to why: Right after Fosta passed, multiple dating sites shut down, including Craigslist’s dating section and a niche site for furries called Pounced. Their decision was understandable: These small companies don’t have anything like the resources of Facebook or Google, and one claim under Fosta could have cost millions of dollars. A few weeks later, Facebook announced that it was entering the online dating industry.

In other words, Big Tech lobbied for a bill that would make it harder for new entrants to compete with it, and when that bill passed, it immediately set about growing into the gaps vacated by its would-be competitors. That’s the real story of Big Tech and Fosta.

Since Fosta became law, a narrative has developed that tech companies started praising the bill only when its passage had become inevitable. In fact, the Internet Association — the lobbying association representing Google, Facebook, Twitter and dozens of other major internet companies — endorsed an early Senate version of the bill in November 2017, months before the text was finalized.

Today, both Republicans and Democrats seem determined to use Section 230 to punish Big Tech. In response, the companies have made nominal noise in defense of the law — the Internet Association recently held an event on Capitol Hill with ice cream and puppies — but they’re not scared. They know that no matter what Congress does to Section 230, they will survive and many of their competitors won’t. They know that changes to the law will sink their smaller competitors, and that those competitors are their future acquisitions.

Instead of undermining Section 230, we should pass comprehensive privacy legislation letting users control how their data is collected, used and shared.

We should address Big Tech’s unfair business models — in which users have no control over their data and can’t easily move to a competitor — head-on. We should modernize antitrust law and stop the endless flood of mergers and acquisitions that have made competition among internet services an illusion. And we should demand a private right of action that can’t be signed away in a terms-of-service agreement: When the privacy rights of users are violated, users should be allowed to sue those companies rather than waiting around for a government agency to do something.

The big companies will panic and offer to endorse further changes to Section 230 instead. Don’t let them get away with it.

Elliot Harmon (@elliotharmon) is the activism director at the Electronic Frontier Foundation.

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A version of this article appears in print on  , Section A, Page 29 of the New York edition with the headline: Don’t Give Big Tech A Big Gift. Order Reprints | Today’s Paper | Subscribe

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