Abstract
In 1996, Congress passed Section 230 of the Communications Decency Act, a twenty-six-word law that immunized early internet companies from civil immunity arising from hosted, third-party content. At the time, the law was necessary to allow fledging companies to innovate without fear of bankruptcy-inducing lawsuits and ultimately helped to create the internet as we know it. To the extent this civil immunity has contributed to the vast technological advances over the past three decades, it should be lauded. However, the internet has dramatically changed in the past thirty years, and the law has been relied upon to protect companies in a wide variety of circumstances that its original drafters could not have imagined. Section 230 is now the target of numerous legal challenges, with plaintiffs arguing that its protection has gone too far and courts signaling their agreement. At the same time, government efforts to regulate large internet companies are being frustrated by those companies’ First Amendment rights. This has resulted in an untenable circumstance wherein technology companies are wholly unaccountable, immune to government regulation and civil liability alike. Good policy reasons remain to immunize certain conduct, but there is also an increasing need to allow government regulation. This article proposes a simple solution: solve one problem with the other; abolish Section 230 immunity and replace it with a new, better-tailored form of civil immunity on the condition that companies must opt-in to a regulatory regime aimed at resolving the myriad social issues they present. Because such an opt-in system is voluntary, it would avoid First Amendment issues faced by current legislative efforts. Ultimately, this solution would reinforce the benefits of civil immunity in cases where the courts have diminished Section 230 protection but only in those areas where society feels liability is appropriately waived. It would tailor the regime to the type of internet service being provided to better address the internet of today versus the internet of thirty years ago. It would provide a mechanism by which social media companies can be regulated without violating the First Amendment. It would also inject a market dynamic into the law, such that companies would only agree, provided the government’s burdens are not too severe. The modern internet is a place of wonders and horrors alike. We need to reinforce the good Section 230 has done for society but also address the internet’s modern threats. This article advances a way to do just that.
Recommended Citation
Nandor F. Kiss,
The Twenty-Six Words That Created the Internet… and then Maybe, Kind Of, Destroyed Society: Understanding and Reforming Section 230 of the Communications Decency Act,
31
Mich. Tech. L. Rev.
131
(2024).
Available at:
https://repository.law.umich.edu/mtlr/vol31/iss1/3
