In the first edition of our blog series expanding on Carrie Goldberg’s congressional testimony, we explore the birth of Section 230 and find out how we got here.
In 1995, Congress passed 47 U.S.C. Section 230 as part of the Communications Decency Act. It was a small section of a broader bill, intended to combat pornography on the internet which lawmakers realized children were accessing. Section 230 established protections for websites from being sued for publication torts like defamation for content their users post. At the time, the main source of user-generated content was online bulletin boards, Prodigy and CompuServe, where the most heinous acts of the day, comparatively mild to the destruction now, was mostly people calling each other frauds. One court had found that a bulletin board was liable for defamatory content one user posted about another, because that bulletin board had been actively moderating the content on its site.
In the mid-1990’s haze of deregulation, Congress speculated that if bulletin boards were freed from liability to their users, they’d self-moderate and voluntarily implement measures to keep their platforms and users safe. The idea was that removing the threat of liability would incentivize these companies to be good Samaritans and self-govern their platforms responsibly.
That is not what happened. Just as when Wall Street was deregulated, without rules, regulation or the threat of lawsuits from injured users, the companies ran amuck. They could grow at quantum speed without the need to invest any money into keeping their product safe or establishing responsible policies and procedures to respond to injuries or staffing moderators in scale with the number of users on their platforms. Rather than incentivizing good content moderation hygiene, Section 230 became a shield for platforms, and a license to get away with no content moderation or safety measures.
Concurrently, an overhaul of internet companies’ revenue model – from subscription to “free” — was the nail in the coffin for online consumer safety. What had once been subscription-based model with users paying monthly fees to companies like AOL in the 90’s transformed into an advertisement-based model. Users were no longer the customers; advertisers were. No longer did companies need to compete to provide the best service to their users. When Internet products became “free” to users, users went from being valued customers to the commodity, the eyeballs on the ads. The cold shoulder to users’ needs and safety has become far more extreme in today’s internet where users are not just the commodity to advertise at, but instead are the raw material from which companies like Facebook, Google, and Amazon extract behavioral and consumer data, then use it to manipulate and forecast those very same users’ habits.
Ironically, our clients, especially my exploited underage clients, are the ones that the 1995 Congress was trying to protect. Yet, this is the population most victimized by the creep of immunity.
Over past 25 years, our courts took a rather narrowly written law which was intended only to prevent lawsuits against tech companies related to publication torts, like defamation, and metastasized it into shielding the most powerful companies in the world from responsibility for things like terrorism, genocide, child sexual exploitation, illegal firearms dealing, and stalking. It expanded the law well beyond claims of defamation and obscenity, to also throw plaintiffs out of court if they claimed their injuries were caused by negligence, fraud, contract breaches from companies violating the terms of service agreements, discrimination in advertisements, and the product being detective. Even statutory damages in our federal child pornography law is off-limits for survivors despite companies making a profit off their nude images.
The tech industry is not inherently bad. As David Michaels explains in his book, “The Triumph of Doubt” about cover-ups in toxic torts, most problematic corporate behavior happens through a series of small decisions. Publicly traded and investor-based companies are pressured to deliver growing profits on a short-term basis. The culture of angel investors and venture capitalists hungry for that next unicorn normalizes this dangerous “move fast and break things” ethos. Unfortunately, the broken things are too often living breathing humans. Milton Friedman’s fetishized model that a corporation’s primary objective is to maximize shareholder value, even presenting it as a fiduciary responsibility limited only by the boundaries of law and regulation. So when there’s neither law nor regulation, and the injured are excluded from our courts to vindicate their harms, the products get more dangerous and the corporate greed more deeply rooted.
The importance of litigation to discourage corporations, entire industries even, from their most antisocial temptations. When the ill effects of a dangerous or toxic product shift the true costs of those products onto humans and communities, litigation is how we boomerang those costs right back to the source. This “regulation by litigation” is how our society took on Big Tobacco, opioid manufacturers, asbestos, carcinogenic weedkillers, massive polluters, and more. The process of litigation, even when the defendants engaged in evasion, obfuscation, and cover-ups have provided critical inside reports and insights into the level of recklessness with which the industries knew they were injuring the community. Without litigation, we must rely on the whitewashed dribs and drabs of “transparency reports” that tech PR flacks deign to release to the public or wait for a rare whistleblowers like Frances Haugen to leak internal documents at tremendous personal risk.
