On Thursday the president of the United States signed an executive order that aims to address the liability regime of social media companies. A wide variety of reports have highlighted the problems with this move, but there is one problem that we find especially troubling: the danger of politicizing what is fundamentally a legal debate around party lines.
The president needs to stay out of this debate.
The Internet and politics have always had an awkward relationship. There have been numerous attempts to bring the Internet into mainstream politics over the years, most of which have been unsuccessful. The main reason is that the Internet is not a static “thing,” but a model for how networks and computers can interconnect through voluntary collaboration. A key characteristic of this model is that it’s decentralized, which means it doesn’t have a central point of control that dictates how the Internet should evolve. There is no switch that one can turn on and off, and as soon as policymakers or regulators try to impose one they inevitably chip away at the Internet itself. This characteristic has always been its most powerful asset, and the reason it has been an infinite source of innovation and growth - from the Web to ever-evolving smart devices, homes, etc. This lack of central control is a feature of the Internet, not a bug!
Most of the early legal frameworks that have been implemented in the Internet reflect this apolitical premise, albeit at different levels and to different degrees. But there is really no other law that does this as gracefully as Section 230 of the Communications Decency Act in the United States, which undergirds “intermediary liability” online.
Online intermediary liability protection first emerged in the United States in 1995 as a policy discussion regarding the scope of responsibility intermediaries should have. At the time, there was no Facebook or Twitter, so the law was aimed at services like CompuServe, Prodigy and AOL. However, it set the tone for all future services and would later be exported to the world as one of the most positive Internet legal developments. The question was simple: should intermediaries be liable for content posted using their services or for actions performed by third parties, i.e. their users?
This question would fundamentally shape the future of the Internet. It discouraged attempts of centralized control because it did not force providers to perform functions they were never originally supposed to do. Similar to how telecommunications services are not responsible for the things phone users say over the phone, it was clear that online intermediaries and service providers would need similar commonsense restrictions on what they could be liable for.
Immunity from liability ensures a level playing field and provides autonomy to a diverse set of actors to perform their intended functions. In this context, Section 230 provided predictability in the Internet’s highly unpredictable environment. No one can predict the next innovation; the Internet is designed this way. The Internet’s highly unpredictable environment can only unfold to its full potential if it operates within a legal framework that is obvious in its intention and unsurprising in its outcomes. Section 230 does this. Politicizing it would reverse years of such predictability and could place the Internet’s future potential in jeopardy.
With this in mind, one can see how the executive order is problematic, setting in motion a dangerous precedent both for the Internet and speech. The problem is that a lot of the provisions in this order appear to be what Stanford’s Director of Intermediary Liability, Daphne Keller, calls “atmospheric” – politically driven questions that should not be part of the legal debate related to the scope of intermediary liability protections. They constitute a distraction, which could cause a series of unintended consequences for the evolution of the Internet.
While conversations about the evolving scope of Section 230 are healthy, they should not be based on fashionable political motivations. Section 230 has a historical track record of promoting innovation and creativity online. By separating it from partisan politics, we can ensure that these benefits are retained.
Note: this post originally appeared on The Hill