President Donald Trump has long been an outspoken foe of big technology companies. And in recent months, he has focused his ire on Section 230, a provision of the 1996 Communications Decency Act that shields online platforms from liability for content posted by their users.
In May, Trump called on the Federal Communications Commission to reinterpret the law—though it's not clear the agency has the power to do that. Since then, he has tweeted about the issue incessantly.
On Tuesday evening, Trump ratcheted up his campaign against Section 230. In a tweet, he called the law "a serious threat to our National Security & Election Integrity." He warned that "if the very dangerous & unfair Section 230 is not completely terminated as part of the National Defense Authorization Act (NDAA), I will be forced to unequivocally VETO the Bill."
The NDAA is a massive spending bill that Congress passes each year to authorize funding for the military. This year's version, now under active discussion on Capitol Hill, is expected to cost around $740 billion.
The NDAA is seen as a "must pass" bill because no one wants to be blamed for holding up funding for the troops. So inserting language into it can be a way to pass proposals that might not stand on their own. But there's also a risk of a backlash—especially if a measure is seen as unrelated to the military. This may be why Trump has started claiming that Section 230 is a "threat to our national security," since that would theoretically make it germane to a defense funding bill.
Trump's campaign to repeal Section 230 appears to go beyond mere tweets. The White House is reportedly telling members of Congress the same thing in private that the president is telling his 88 million Twitter followers: that he will veto the NDAA if it doesn't repeal or at least overhaul Section 230.
Repealing Section 230 could throw the Internet into chaos
Section 230 has two key provisions. One states that an online service provider can't be treated as the publisher of content created by a third party. The second provision says that a provider can't be held liable for taking down content it "considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." The inclusion of "otherwise objectionable" in this list gives online platforms essentially bulletproof protection against lawsuits for removing third-party content.
Trump's focus on Section 230 seems to be driven by anger that online platforms—especially Twitter—have labeled or removed his posts when they violate their policies. In May, Twitter slapped a warning label on a Trump tweet exaggerating the risks of voter fraud. Soon afterward, Trump signed an executive order asking the FCC to reinterpret Section 230. He's been tweeting angrily about the law ever since.
Trump presumably hopes that repealing Section 230 would force Twitter to take a more hands-off approach. But there's no guarantee that would happen. Fundamentally, Twitter's right to label or remove tweets doesn't flow from Section 230, it comes from the First Amendment. Like anyone else in American society, Twitter has a First Amendment right to decide what information it will host on its own website.
It's hard to predict what would happen if Congress takes Trump's demand literally and "completely terminated" Section 230. Because Section 230 has been on the books almost as long as the consumer Internet has existed, there are very few precedents governing the liability of online platforms in a world without Section 230.
The few precedents that did exist before the 1996 passage of Section 230 had held that platforms that moderated user content were more liable for that content than platforms that took a hands-off approach. This created a perverse incentive for platforms not to moderate user content at all. So one possible consequence of repealing Section 230 would be to force online platforms to take a more hands-off approach to content moderation—including Trump's tweets.
But it's hard to see how this would deter Twitter from labeling Trump tweets as inaccurate. And it seems more likely that things would go in the opposite direction: that big platforms, unwilling to give up moderation altogether, would be forced to filter content more aggressively. Platforms that wanted to continue moderating might decide that they need to take down anything that seems potentially libelous—like Trump's May tweet baselessly insinuating that television host Joe Scarborough murdered one of his employees.
It's also possible that courts would recognize the perversity of this 25-year-old rule and fashion a different set of liability rules that didn't penalize sites that made good-faith attempts to remove objectionable content. In that case, predicting what rules would govern a post-Section 230 Internet is difficult. But there's no reason to think it would force online platforms to become more accommodating to Republican politicians.
One thing that's certain is that a repeal of Section 230 would create a lot of uncertainty for US Internet businesses—not only online giants but anyone who runs a blog with a comment section. Many sites might just shut down their comment sections rather than deal with the legal headaches.
Members of Congress probably realize this, and they may refuse to throw the Internet into chaos just to indulge Trump's anger at Twitter.
Trump probably won’t get what he wants
Of course, Congress could overhaul Section 230 rather than repealing it outright. Several members of Congress have proposed Section 230 reform bills. One ham-fisted proposal by Sen. Josh Hawley (R-Mo.) would allow large technology companies to keep their immunity only if they could convince four out of five Federal Trade Commissioners that their moderation policies were "content neutral." Conservative writer David French dismissed Hawley's bill as an "unconstitutional mess."
A more serious proposal—and one that's reportedly getting serious consideration on Capitol Hill—comes from Sen. Roger Wicker (R-Miss.). His bill deletes the phrase "or otherwise objectionable" from Section 230. That means sites would only get immunity for content-removal decisions if the removed content fell under the other enumerated categories, including content that is "obscene," "excessively violent," or "harassing." Wicker also adds a few new categories to this list, including "promoting terrorism."
How significant this shift would be in practice is unclear. Under Wicker's proposal, sites still couldn't be considered the publisher of material submitted by third parties. That provides online platforms with pretty broad immunity all on its own. And the Wicker bill wouldn't make removing any types of content illegal. It just wouldn't offer immunity for as many takedowns as current law does.
And in most cases, it's simply not illegal for a website owner to remove third-party content—even if they do so in a manner that is arbitrary or politically biased. Twitter would probably still have the right to remove Trump's tweets if it wanted to—and it could certainly continue adding labels debunking Trump's claims.
The outcome that seems most likely is that Congress simply ignores Trump's threats. With less than two months remaining in his presidency, Trump doesn't have much leverage. He hasn't put a clear proposal on the table, which will make it harder for Republican members of Congress to give him what he wants. Meanwhile, Democrats have shown no inclination to accommodate Trump's demands.
"I'd like to start for the Blazers, but that's not going to happen either," tweeted Sen. Ron Wyden (D-Ore.), the original co-author of Section 230.
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