On May 14, President Biden issued an executive order (EO 14029) on Section 230, the once obscure provision of the Communications Decency Act that is now at the heart of political fights over regulating speech on online platforms, and more broadly, the power of big technology companies.
If you missed the roll-out of EO 14029, you can certainly be forgiven. There was no public signing ceremony, no accompanying presidential remarks — not even a press briefing. With a yawn inducing title — “Executive Order on the Revocation of Certain Presidential Actions and Amendments” — it almost seems that the order was supposed to fly under the radar. EO 14029 was not even the biggest executive order on technology policy signed that week: just two days prior, the President rolled out a much-anticipated “Executive Order on Improving the Nation’s Cybersecurity.”
So, what does the order do? As a policy matter, the most straightforward answer is: not a whole lot. It simply revokes a slew of Trump-era orders, including EO 13925 or “Preventing Online Censorship,” which was probably of minimal legal effect anyway. In another sense, however, President Biden’s action moves Section 230 policy debate away from the executive branch, signaling that the responsibility for reform lies squarely with Congress.
To fully appreciate the implications of President Biden’s action, it’s useful to take a few steps back.
What is Section 230, anyway?
Section 230 of the Communications Decency Act, codified at 47 U.S.C §230, was passed in 1996 in order to protect innovation on the internet, then a fledgling industry. The gist of the statute is reasonably simple, and it has two major components.
Section 230 (c)(1) states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The provision establishes that an internet service provider cannot be held liable for the content posted to the site by another. So, if someone posts a defamatory tweet, Twitter cannot be sued for defamation, even though the tweet appears on its website, because the content was created by someone else. This is a notable departure from how the law works offline, where a content publisher–say, a newspaper–can be held liable if it publishes defamatory content created by another–a journalist, for instance.
Section 230 (c)(2) states that online service providers are not liable for “any action voluntarily taken in good faith to restrict access to or availability of [objectionable content], whether or not such material is constitutionally protected.” This provision seeks to empower online services to develop content moderation policies, curate content, and take steps to maintain a family friendly environment on the internet without facing legal repercussion. So, if Twitter removes from its platform a tweet with objectionable content– one containing pornography, for instance– it cannot be held liable because pornography, while constitutionally protected, is “objectionable.”
The courts have given Section 230 broad effect. In Zeran v. American Online, one of the first major cases interpreting the statute, the court held that Section 230 “provides immunity” for service providers against legal action stemming from both the dissemination, under Section 230 (c)(1), and removal of material, under Section 230 (c)(2), online. Whether or not this interpretation is on solid footing as a matter of statutory interpretation or as a matter of policy, the breadth of the immunity is widely considered to have created the modern internet.
What do the EOs mean for Section 230?
With that baseline, let’s fast forward a little. In May 2020, Twitter announced that labels and warning messages would appear alongside tweets “containing disputed or misleading information” to “provide additional context and information.” It was not long before Twitter flagged one of President Trump’s tweets, provoking outrage from conservatives who have dedicated significant airtime– and a few congressional hearings— to fleshing out concerns that social media companies censor conservative voices.
Days after Twitter’s announcement, President Trump signed into law Executive Order 13295 or “Preventing Online Censorship.” This Order stated the President’s belief that social media companies “censor opinions with which they disagree” and declared that Section 230 immunity should not extend to online platforms that “stifle viewpoints with which they disagree.” Among other measures, the Order directed Federal Communications Commission to issue rules to “determine” the circumstances in which a social media company would lose liability protection. In effect, the Order was a shot across the bow, signaling to technology companies Section 230’s immunity might not apply if the Administration perceived them to be censoring or targeting conservative viewpoints.
Although praised by conservative lawmakers, the Order was roundly criticized by subject matter experts. Kate Klonick, an internet law expert at St. John’s University, called the EO “bluster” because it sought to “cast aside 25 years of judicial precedent.” Jessica Rosenworcel, a Democratic FCC Commissioner, described it as creating a “thicket” of First Amendment issues by asking the FCC to “dictat[e] what can and can’t be said online.” In a matter of weeks, the order was challenged in court on grounds that it sought to “curtail and chill the constitutionally protected rights of all online platforms and individuals.”
Legal and policy merits aside, President Trump’s Order staked out an active role for the executive branch in the debate over whether and how Section 230 should apply to social media companies. President Biden’s order, with the stroke of a pen, changed course. EO 14029 announced that it “revoked” the Preventing Online Censorship order by instructing the Director of the Office of Management and Budget to “rescind” the order itself and any associated agency actions. By pulling the executive branch back form a policy-making role, President Biden has cleared the way for Congress to take up reform.
Congressional Action
With a Democratic House and a newly, albeit thinly, Democratic Senate, the question now is what action lawmakers will take to reform Section 230. There are, perhaps unsurprisingly, quite a few proposals out there. In recent years, they have spanned the gamut from repealing Section 230 altogether, to imposing obligations on companies that seek legal immunity (including an obligation that platforms not moderate content in a manner that is biased against a political party or viewpoint), to identifying types of content that do not qualify for 230 protection (such as material that violates child sexual exploitation and antidiscrimination laws). It is less clear which of these proposals will gain traction in committee.
Since the start of the 117th Congress in January 2021, both the House and Senate have convened hearings that implicate Section 230 reform. The House Energy and Commerce Committee– which has jurisdiction over “electronic communication and the internet” — recently convened hearings on disinformation and extremism in the media and on social media’s role promoting disinformation and extremism. Committee Chairman Frank Pallone (D-NJ) is reportedly drafting legislation to reform and modernize Section 230. A draft bill has not been released, but there is speculation that a bill will seek to “protect marginalized communities” online.
On the Senate side, the Senate Judiciary Committee’s Subcommittee on Privacy, Technology, and the Law recently held a hearing on social media platforms’ use of algorithms. Lawmakers lamented social media echo chambers in bipartisan fashion, prompting speculation that a Section 230 reform bill would include algorithm-focused liability exceptions, like those proposed here and here. The Senate Commerce Committee has also contemplated Section 230 reform, convening a hearing on the scope of the immunity with Big Tech CEOs Mark Zuckerberg, Sundar Pichai, and Jack Dorsey last fall.
Although Democrats and Republicans may agree broadly that Section 230 reform is needed, the devil will almost certainly be in the details. At bottom, Democrats and Republicans have divergent worldviews about the problematic behavior that Section 230 permits: while Republicans believe that social media companies are going too far to censor conservative voices, Democrats think that they don’t go far enough to get toxic, damaging, and downright illegal conduct off their platforms. Whether Congress can craft policy that reconciles–or circumvents–these divergent worldviews remains to be seen.
* Elizabeth McElvein is an Associate Editor on the Michigan Technology Law Review.
Putting aside any discussion of the legal efficacy of President Trump’s executive order, it did reinforce the status of CDA reform as a forefront policy debate in Congress. There are a handful of CDA reform bills being considered at the committee level in the current legislative session and more in the discussion draft or other stage of introduction – though, to be sure, other legislative items are, for now, taking center stage in Congress. President Biden’s latest action essentially offers a clean slate for both parties and the White House to discuss reforms anew. Even though there appears to be an appetite for CDA reform and some consensus on the need to reexamine the CDA in light of the new digital age, the parties diverge greatly in the reasons and focus of such reform, making any potential reform likely to be incremental, rather than a wholesale rewrite of Section 230. We will continue to follow these developments as there is a lot at stake when it comes to any changes to the protections under the CDA.