Protecting the Legal Foundation of the Internet

Protecting the Legal Foundation of the Internet: 2019 in Review

By: Elliot Harmon

When someone says something unlawful online, they should be the one held responsible for it, not the website or platform where they said it. Section 230—the most important law protecting free speech online—reflects that common-sense principle. This year, EFF defended Section 230 in Congress, the courts, and on the Internet.

In 2018, Congress passed SESTA/FOSTA, the only change to Section 230 in its 23-year history. SESTA/FOSTA includes broadly-worded provisions aimed at holding websites liable for sex trafficking. This has given platforms little choice but to become more restrictive in what types of posts they allow, censoring innocent people in the process. Faced with the impossible task of complying with the law, some forums have shut down altogether. SESTA/FOSTA also cast legal doubt over important harm reduction activities in the sex work community, putting sex workers in direct danger.

Misguided attempts to strip platforms of Section 230 protections based on concerns over harmful content or alleged political bias have so far failed to gain momentum.

After SESTA/FOSTA passed, some free speech advocates worried that Congress was about to go on a rampage, chipping off larger and larger pieces of Section 230 and doing unspeakable harm to marginalized communities in the process. In October of this year, EFF’s Corynne McSherry testified before the House Energy and Commerce Committee, championing Section 230’s role in building the modern Internet:

We all want an Internet where we are free to meet, create, organize, share, debate, and learn. We want to have control over our online experience and to feel empowered by the tools we use. We want our elections free from manipulation and for women and marginalized communities to be able to speak openly about their experiences.

Chipping away at the legal foundations of the Internet in order to pressure platforms to play the role of Internet police is not the way to accomplish those goals.

That same day, the New York Times published my op-ed arguing that undermining Section 230 won’t make tech companies behave better, but it will hurt users.

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.

Fortunately, many lawmakers have heard our message and have become slightly more cautious when talking about Section 230. At the Energy and Commerce Committee Hearing, Ranking Member Cathy McMorris Rodgers (R-WA) said, “I want to be very clear: I’m not for gutting Section 230. It’s essential for consumers and entities in the Internet ecosystem.” Misguided attempts to strip platforms of Section 230 protections based on concerns over harmful content or alleged political bias have so far failed to gain momentum. And just in the past few weeks, some members of Congress have become increasingly vocal in acknowledging the disastrous consequences of SESTA/FOSTA.

Meanwhile, the fight to stop SESTA/FOSTA in court carries on. In September, the plaintiffs seeking to block enforcement of the law asked a federal appeals court to reverse the district court’s dismissal of the case. EFF is part of the legal team representing the plaintiffs challenging SESTA/FOSTA under the First Amendment in Woodhull v. United States.

EFF also filed an amicus brief in Force v. Facebook, a case asking whether a platform can be held liable for providing “material support” to terrorists, based on the posts of third parties. We argued that both Section 230 and the First Amendment prevent these types of lawsuits. The Second Circuit agreed, continuing last year’s trend of courts recognizing that the responsible parties are the people who post unlawful speech, not the websites where that speech appears.

Our work to save Section 230 is far from over, but we’ve been successful in showing the public that Section 230 is at the core of so much of what’s good about the Internet.

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For the recently released report: Behind the One-Way Mirror: A Deep Dive Into the Technology of Corporate Surveillance

For more on behavioral tracking: Online Behavioral Tracking

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The Author: Elliot Harmon is the Activism Director at EFF. He advocates for free speech and the right to innovate online, with particular emphases on patents, copyright, open access, and Section 230.

Before coming to EFF, Elliot served as director of communications at Creative Commons, an organization that helps creators share their works with the public via open copyright licenses. Before that, he worked as a writer and curator for TechSoup, a technology resource for the nonprofit community. He has degrees from the University of South Dakota and the California College of the Arts.

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The article Protecting the Legal Foundation of the Internet: 2019 in Review was originally created and published by Electronic Frontier Foundation (EFF) and is republished here with permission and with attribution to the author Elliot Harmon and eff.org

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