Section 230's Challenge to Civil Rights and Civil Liberties

Abstract

In Section 230 of the Communications Decency Act, lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The goal was to encourage platforms to “clean up” offensive material online. Yet Section 230’s immunity has been stretched far beyond that purpose to immunize platforms that solicit or deliberately host illegality. As Olivier Sylvain’s thoughtful essay shows, it has been invoked to shield from liability platforms whose architectural choices lead ineluctably to illegal discrimination.

Section 230’s immunity provision has secured important breathing space for innovative new ways to work, speak, and engage with the world. But the law’s overbroad interpretation has been costly to expression and equality, especially for members of traditionally subordinated groups.

This response piece highlights Sylvain’s important normative contributions to the debate over Section 230. It provides some practical reinforcements for his reading of Section 230. Our central disagreement centers on the way forward. Congress should revise Section 230’s safe harbor to apply only to platforms that take reasonable steps to address unlawful activity. I end with thoughts about why it is time for platforms to pair their power with responsibility.

Keywords: civil rights, civil liberties, cda, section 230, communications decency act, Sylvain, social networks, ISP, cyber harassment, racism, sexism