Podcast: The Ins and Outs of the Section 230 Debate, With Ellysse Dick and Ashley Johnson

Section 230 of the Communications Decency Act is at the center of a contentious, high-stakes debate about free speech, intermediary liability, and the future of the Internet. Why is a 1996 law so important today? Why have Presidents Biden and Trump both said they want to repeal it? Was it to blame when Twitter and Facebook banned Trump from their platforms, or was it the reason they didn’t ban him sooner? Rob and Jackie discuss the issue with ITIF policy analysts Ellysse Dick and Ashley Johnson, co-hosts of the new podcast series Ellysse and Ashley Break the Internet, which will start dropping on all major distribution platforms on February 24.

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Ellysse and Ashley Break the Internet: The Ins and Outs of the Section 230 Debate (ITIF podcast series, 2021).

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Rob Atkinson: Welcome to Innovation Files, I’m Rob Atkinson, founder and president of the Information Technology and Innovation Foundation. We’re a DC based think tank that works on technology policy.

Jackie Whisman: I’m Jackie Whisman. I handle outreach at ITIF, which I’m proud to say is the world’s top ranked think tank for science and technology policy.

Rob Atkinson: This podcast is about the kinds of issues we cover at ITIF, from the broad economics of innovation to specific policy and regulatory questions about new technologies. That’s what we’re going to talk about today. Our favorite topic, Section 230.

Jackie Whisman: So this is one of those subjects that gets a lot of attention, but it’s so difficult to unpack. So I’m really looking forward to this conversation.

Rob Atkinson: That’s why we’ve brought ITIF’s resident experts to help us figure this whole thing out.

Jackie Whisman: Ellysse Dick and Ashley Johnson are both policy analysts at ITIF. Ellysse focuses on AR/VR innovation and policy. Including privacy, safety and accountability. Ashley researches and writes about issues like privacy, security, and platform regulation. They’re the hosts of a new limited series podcast, Ellysse and Ashley Break the Internet, which we’ll take a deep dive into the ongoing Section 230 debate. Thanks for being here guys.

Ashley Johnson: Thanks for having us.

Ellysse Dick: Thanks so much for having us. I’m excited for this conversation. Yeah, always down to talk about Section 230.

Jackie Whisman: Good, because I have a lot of confusion around this topic, so thank you. So given that let’s start small. What is Section 230 and why does it matter?

Ashley Johnson: So Section 230 of the Communications Decency Act was passed by Congress in 1996. It is the law in the U.S. governing what’s called intermediary liability for online services. That basically means who is responsible when someone says or does something harmful or illegal online. Particularly, when that has to do with third-party content. That can be an online marketplace, like a posting in an online marketplace. It can be a social media post. It can be video on YouTube. All these different things that users submit to the internet. Section 230 basically says that the platforms where users host them to are not liable for that content, in most cases.

Ashley Johnson: In Section 230 specifically has two provisions called C1 and C2. C1 does basically what I said, it says that online platforms aren’t liable for the content that their users post, again in most cases. C2 says that platforms are also not liable when they act in good faith to remove content that they believe is harmful or objectionable.

Ellysse Dick: So why does Section 230 matter? It’s important for a couple of reasons. The first is innovation. Section 230 really allows platforms to develop content moderation approaches that work best for their business model, their platform, and their audience. The second is competition, it allows platforms to develop these moderation approaches as well as their business models, without threatening potential litigation that could hold them back from innovating new approaches. Finally, it’s important for free speech for the users themselves and for the platforms who want to communicate speech. It allows content to go up online and it allows platform to decide what is appropriate and what is not. Which allows for greater civic discourse and conversations on the internet.

Rob Atkinson: So one of the I think, interesting things about Washington in terms of tech policy, it’s kind of like we have an attention deficit disorder and Washington can only handle one thing at a time and it’s brain. So we go through these fads. One of them was net neutrality, that’s all we could talk about. Then it was privacy, and then facial recognition. Now it’s 230. 230, 230, 230. What’s going on? Why 230 now?

Ashley Johnson: Well, there are a lot of growing regulatory debates in the U.S. but also globally around different types of content moderation. What belongs on the internet? What shouldn’t be on the internet? There are also a lot of new and emerging mediums, which is sort of Ellysse’s expertise. So I’ll let her add anything here.

Ellysse Dick: Yeah, 230 doesn’t just apply to the Facebook’s, and the Googles, and the Twitters of the world. They apply to web hosting services and also to a lot of new technologies we see coming up, like podcasts and newsletters. And the area I work on augmented and virtual reality, such as multiplayer games or multi-user platforms.

Jackie Whisman: I want to dive a little deeper into kind of the political arena here and how it relates to the policy. Maybe we can start by talking about who are some of the key players involved in the debate and what they’re saying? Because like Rob said, this is just one of those hot issues right now. I often compare it to net neutrality in that there’s lots of kinds of basement experts, but nobody’s really saying the same thing. So I’d like to go deeper there so that we can get to the right answer, maybe.

Ashley Johnson: So there are a lot of different voices in this debate policymakers, and stakeholders, and just average internet users. In terms of policymakers, there are sort of two competing stances between Democrats and Republicans. The most common Democrat stance is that Section 230 motivates online services to leave up content that is harmful, but still legal that Democrats believe doesn’t belong on the internet like forms of hate speech, harassment, bullying, misinformation. Whereas the more common Republican stance on Section 230 is that it allows online companies to remove too much speech. There are some allegations of political bias among online companies, and censoring conservative opinions on these larger tech platforms.

Ashley Johnson: But outside of just the halls of Congress I guess, any changes to Section 230 would impact tech and non-tech companies of all sizes. Any company that does business on the internet pretty much would be impacted in some way. Not just these big tech companies that are sort of the focus of the debate. Then we also have people on from a variety of different perspectives from the news media, international human rights, people who can talk about victims of online abuse. These are the sorts of people that we’re going to be talking to on our podcast, because there’s a lot of different interests from a lot of different people.

Rob Atkinson: Ashley, you bring up a really, I think interesting point that I don’t think most people have really thought through. Which is there are some Democrats like President Biden in his campaign, now Bruce Reed, a senior advisor to the president has said, “We should just get rid of 230.” Then there are some leading Republicans who say, “We should get rid of 230.” But they want to do that for 180 degrees, opposite reasons. The Democrats think, “If we get rid of 230, all these platforms will stop putting up speech they don’t like.” And Republicans, they go, “If we get rid of 230, they’ll leave speech up that we do like.” It seems to me that at least one of those positions has to be wrong?

Ellysse Dick: The sort of prediction that I’ve seen for what will happen if Section 230 goes away, actually kind of suggests that both could be right, but neither of them will get what they want. So online services will have two different choices as to what to do to minimize their liability in a world without Section 230. They can either remove any potentially harmful speech, which is closer to what Democrats would want. But wouldn’t exactly turn out the way that I think Democrats would like, because in removing any potentially harmful speech online services would remove basically anything politically controversial. Which includes not just conservative opinions, but a lot of liberal opinions. Or online companies could take a very hands-off approach and do absolutely no content moderation, removed nothing even if it’s illegal.

Ellysse Dick: This is what the online service CompuServe did, in the world before Section 230 and it managed to escape liability because the court decided that it was not doing anything to edit the content, or moderate the content that went up on its site. So it wasn’t a publisher or editorializing that content in any way. So that would also be an internet that I don’t think most people would enjoy very much.

Rob Atkinson: Yeah. I mean that I think gets to one of the big problems of big tech hatred is, these companies are damned if they do and they’re damned if they don’t. If they take down some really egregious speech, then they’re, “Oh, well you’re a publisher and you have...” If they don’t take down anything then they’re seen as profit hungry companies that just want to have things up to “make money.” So in a lot of ways they’re in a no-win situation. They can’t please everybody all the time.

Jackie Whisman: But don’t you think that, that’s the point of the people that are calling for the repeals and the amendments is to hurt the companies? Not necessarily the speech itself probably isn’t the main focus? I don’t know. Maybe just my cynical view.

Ellysse Dick: I think that brings up a really great point in this 230 debate that is one of the things we want to do with our podcast, is highlight that it’s not just the big companies. It really will prevent a lot of these smaller startups that we’re starting to see with innovative ideas for how people can communicate online from going further. Because if there’s no Section 230 protections, then the big companies are going to be the ones with the resources to handle any litigation around intermediary liability problems. So I think the big tech focus is really misplaced in this debate.

Jackie Whisman: I’d like to know your views more on what are the dangers if it’s repealed? What about if we amend it? Like you said, I think that the big companies are in a position to kind of push back, or to bounce back really. But we could see a lot of the smaller players kind of go away because of fines or what have you. I’m interested in hearing what you think the internet looks like in either of these scenarios?

Ellysse Dick: So like I mentioned in a world without Section 230, online services would have these two different choices as to what to do. But they would also have to again, even if they choose either one they will still probably deal with some form of litigation, and a lot of nuisance lawsuits really. This could potentially put smaller businesses under, they would have to maybe stop offering any sort of third party content related services completely. Or maybe, platforms would start to charge for these online services that have traditionally been free. Like social media platforms that we have all enjoyed being able to use for free, because in most cases they run on advertising revenue. But if these companies had to deal with a ton of litigation, that might not be enough to cover it. We might start to see some sort of subscription models emerging or something like that.

Rob Atkinson: One of the things I think that we all do is when we go to an app store... at least I do, I look at the ratings of the app store by the users about the app, this is a good app or not? When I buy things I’ll oftentimes I’ll look... I just bought this thing, which I probably shouldn’t have bought because it seems like it’s pretty worthless. But it’s this thing that you can inject carbon dioxide in water and you get fizzy water. I don’t know. It doesn’t seem to work very well.

Jackie Whisman: That’s called a pandemic purchase, Rob-

Rob Atkinson: It definitely-

Jackie Whisman: ... you probably were influenced on Instagram to purchase that.

Rob Atkinson: But I did look at the reviews and some of them said, “Well, maybe it doesn’t work that well” but a lot of them said it did. Would those sorts of reviews be impacted if we got rid of 230?

Ellysse Dick: Yeah. Definitely business and service reviews would definitely be something that... Because if a business sees that someone posts a bad review of their business or a service that they offer, or one of their products, they could just tell an online company, “Hey, we’re going to sue you. If, if you leave this bad review up, this is defamation.” Or “This is false.” Something like that. Without the protections of Section 230, maybe the online company be more motivated to just take those bad reviews down.

Rob Atkinson: So if I bought the water thing, the carbon dioxide thing again I would see it, but there would be no bad reviews of the product it’d be only great reviews.

Ellysse Dick: Yeah. Without Section 230, we could see a world where there are only good reviews. Or we could see even a world without services that we don’t think of as being third-party content like Wikipedia. Everything that’s on Wikipedia is contributed by mostly volunteer editors who don’t work for the nonprofit Wikipedia, who just submit the information that they know about a topic, the information that they’re able to find and then edit each other’s information to make sure that it’s accurate. That’s been a really good and successful project that a lot of people have found a lot of use in, but it entirely relies on third-party content.

Rob Atkinson: Whenever you read about a 230 debate, it’s almost always now about President Trump’s tweets, or quote “election misinformation,” or all of these things. It’s really all about political speech. I think as you both have shown and including in the forthcoming reports, that the series... Which is a fantastic series on sort of everything you need to know about 230, it’s much more than that. That’s just one component of it. But in that component where it’s all political speech all the time, I wonder if 230 is sort of the wrong... everything is a hammer, if all you have is a nail. Do we need something different? Is 230, really not the answer to this issue. Is there other kinds of things that would address political speech challenges more effectively?

Ellysse Dick: Yeah. I think that, I know Ashley has done a lot of work on this so she can speak more specifically to it. But generally speaking conflating the Section 230 debate with the online political speech debate is a mistake because as we’ve said, Section 230 impacts so much more than someone’s Twitter fights. So I think separating those out and recognizing that, of course political speech is going to be impacted by intermediary liability, but there’s a lot more to it than just whether or not Twitter flags a post. I think that recognizing that is an important next step, especially when we start looking at some of the proposed regulations that we have coming up.

Ashley Johnson: Yeah. I would add to that. This is actually something that several of the people that we talk to on our podcast end up mentioning when suggesting what they think policy makers should do about Section 230 or about the issues that are surrounding Section 230. They really want policy makers to ask, what is the problem that you’re trying to solve here? Is it a problem, an issue of intermediary liability? Or is it something that you think is intermediary liability, or you think is captured under the big umbrella of Section 230 when it’s actually not? Are you trying to solve for misinformation, or hate speech or any of these specific problems? Is Section 230 really the best way to accomplish your goal here? In some cases it might be, but probably not in every case.

Rob Atkinson: Yeah. To use my analogy, if all you have is a hammer, everything’s a nail. If all you have is a legislature, everything is a law. So, hey, there’s a law. We can get rid of it. Maybe that’s not really the answer in this case. Maybe there are other kinds of things, new kinds of public, private partnerships or other things like that. So I think that actually can get to the next question around, what do you think we need to do? And what kind of reforms to 230 should we be doing?

Ellysse Dick: So I’ve been looking a lot for ITIF at the different proposed changes that have come through Congress or are currently in Congress to Section 230, there is a lot of noise going on and a lot of different bills suggesting a lot of different things. Some of them are a lot farther off from the mark than others. Some of them are a lot more bipartisan than others. The ones that are... only geared toward Democrat critiques or only geared towards Republicans, critiques of Section 230 will probably not succeed as well as the ones that are more bi-partisan. One example is the PACT Act, that’s a lot more of a bipartisan approach. It does sort of succeed in looking at issues of accountability and transparency, which are, I think at the heart of a lot of the problems that people have with online services, and especially these larger online companies. It’s not a perfect law or a perfect bill, but it is starting to ask some of the right questions.

Ellysse Dick: Whereas some of these other bills, the one that recently came out the SAFE TECH Act, which is Senator Warner’s bill, that one, I know a lot of Section 230 proponents really don’t like as much. I see a lot of flaws with it as well. I believe Jeff Kosseff, who’s a huge expert in Section 230, refer to it as the Swiss cheese approach. It cuts out so many holes in Section 230, create so many exceptions in Section 230, that it essentially renders the entire law useless. A lot of approaches I think, sort of fall under that umbrella as well, where Section 230 was created to be sort of a fast track to dismiss lawsuits that are just only going to end up in less speech online and greater costs to innovation. If we make that fast-track, put a bunch of obstacles in the way it’s not a fast track anymore, and there’s no point in even having the law.

Jackie Whisman: How would you two, like to see this play out? Then sort of kind of a followup to that, what do you think is likely to happen? What’s your wish? What do you think will happen in the next, 10 months, 12 months?

Ellysse Dick: Well, I think it would be great if we could find a way to have a bipartisan approach to Section 230 reform. If we are going to reform it, that really decides what the issue is, leaves political speech largely out of the law itself, and considers as the kind of content that people are concerned about, and the kind of moderation approaches that they’re concerned about. Which I know Ashley again, has done most of the work on. She is the 230 nerd. I’m just the content moderation nerd. Then is that likely to happen? I think we’re going to see a lot of debate and we’re going to see a lot of fights that bring up issues like we’ve up to date that might not actually relate back to the fundamental purpose and functions of Section 230. So whether we find an actual bipartisan solution is yet to be determined.

Ashley Johnson: I guess I wouldn’t be doing my job if I didn’t tell our listeners to follow your work on this issue, and email or call us if you’re struggling with wrapping your brain around the issue, because that’s what we’re here for.

Ellysse Dick: Anybody who wants to talk about Section 230 with me, I will always do it, especially if you want to have me on a podcast. I love being on podcasts.

Jackie Whisman: We appreciate you being on ours but I want you to plug yours, and tell our listeners where to find you on Twitter, too.

Ellysse Dick: Sure. I’m on Twitter @Ellysse_D and Ashley is also on Twitter as well as our podcast on the ITIF website.

Ashley Johnson: Yeah, I’m on Twitter, @ashleyjnsn. It’s hard to get a handle when your name is Ashley Johnson. You can find our podcast at itif.org/230pod, or anywhere that you listen to podcasts. We’ve got a trailer up now and our first few episodes we’re planning to release on February 22nd. Which is also coincidentally the date that ITIF’s series of reports on Section 230, everything you need to know about Section 230, pretty much from an ITF perspective is also releasing on February 22nd.

Rob Atkinson: I am looking forward to seeing the entire series released and listening to the other podcast. So on our podcast, not your podcast but on our podcast, we have more episodes of great guests lined up. New episodes drop every other Monday. So we’ll hope you continue to tune in.

Jackie Whisman: That’s it for this week. If you liked it, please be sure to rate us and subscribe. Feel free to email show ideas or questions to [email protected]. You can find the show notes and sign up for our weekly email newsletter on our website itif.org and follow us on Twitter, Facebook and LinkedIn @ITIFdc.