First and foremost, this article should not be construed as political in nature nor is it partisan. The right to vote is one of the most fundamental rights in our world today and the purpose of this article is not to attempt to sway your vote in the upcoming 2020 presidential election. When it comes to elections, knowledge is power, and my goal is to simply bring your attention to an issue that could have substantial ramifications on free speech and the online/adult industry.
In early January, the New York Times editorial board released an interview with former United States Vice President and 2020 presidential candidate Joe Biden in which he was quoted as saying “Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms”. Media outlets and free speech advocates across the country were quick to raise concerns over Mr. Biden’s comments. I happen to share in many of those same concerns.
Ultimately, Section 230 was created primarily so that interactive computer services relying on user-generated content could exist without the fear of litigation.
FAST FACT: Section 230 says 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” (47 U.S.C. § 230).
Let’s begin with a brief history of where Section 230 came from and what it is. Section 230, as its commonly known, is a part of the 1996 Communications Decency Act. It’s always important to remember that in 1996, there was no Facebook, Twitter, Instagram or Snapchat. Section 230 provides “interactive computer services” – i.e. websites, hosts, registrars and social media platforms with broad immunity from civil cases over the content users publish on their platforms.
The reason why Section 230 came into existence is because lawmakers knew that an open and free internet was imperative and service providers needed the ability to delete or otherwise monitor content without them becoming publishers. I have a very hard time believing that the internet would exist in its current form without Section 230 and surely platforms like YouTube, Wikipedia and Reddit may not have even come into existence. Take a second to think about hosting providers (Amazon, GoDaddy etc.), I have a hard time believing that anyone in their right mind would want to be a hosting provider without the protections afforded by Section 230.
Could you imagine if Google was financially liable for all of the content created by third parties on the internet? I can, and it would mean that there wouldn’t be a Google. Ultimately, Section 230 was created primarily so that interactive computer services relying on user-generated content could exist without the fear of litigation. Advocates against Section 230 often incorrectly assert that Section 230 provides full immunity, but that is not correct. Interactive computer services can be deemed liable for illegal content that violates intellectual property laws, federal criminal law and electronic communications privacy law.
FAST FACT: Section 230 immunity does not extend to federal criminal law, intellectual property law and electronic communications privacy law.
To Mr. Biden’s credit, he does have a legitimate dispute with Facebook dating back to October 2018, when he wrote a letter to the company asking them to remove an advertisement that claimed he was blackmailing a Ukrainian official to keep them from prosecuting his son. Facebook declined to remove the advertisement and indicated that it would not monitor political advertisements based on whether they included truths or falsities. Biden was also quoted as saying, “I’ve never been a big Zuckerberg fan; I think he’s a real problem.” It’s certainly possible that Mr. Biden has not studied the history of Section 230 and the case law that has stemmed from it and if he hasn’t, now would be a good time, considering that he is trying to win arguably one of the most powerful positions in the world.
It is indisputable that the internet is filled with some nasty stuff or things that people don’t agree with such as hate speech, violence, racism, sexism, bigotry and more, however, the internet is most certainly one of the greatest achievements humans have ever accomplished. Prior to the internet, the instantaneous sharing of information and data from one person to everyone else in the world with a digital device was simply inconceivable. Virtually every industry in the world has grown and evolved because of the internet. From my point of view, as much ugly, nasty and hateful content exists on the internet, I would not sacrifice the internet in exchange for silencing those people that I may not agree with. That is not to say that Section 230 is a perfect law nor that there isn’t room for improvement however, the suggestion of its outright repeal is simply irresponsible and short-sighted.
Section 230 continues to be under attack and historically we have seen the government try to carve out exceptions to Section 230, the most recent example being the much talked about Stop Enabling Sex Traffickers Act (commonly referred to as “FOSTA/SESTA”). I fully anticipate that politicians and prosecutors will continue to try to weaken the breadth of Section 230.
As I said during my presentation at XBIZ 2020 “any attack advocating the outright repeal of Section 230 is an attack on our industry.” I encourage all United States voters to spend some time educating themselves on each candidate’s views and positions on the laws. It is especially important for anyone who is part of the internet industry to pay close attention to politicians taking anti-free speech positions.
This article does not constitute legal advice and is provided for your information only and should not be relied upon in lieu of consultation with legal advisors in your own jurisdiction. It may not be current as the laws in this area change frequently. Transmission of the information contained in this article is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver.
Corey D. Silverstein is the managing and founding member of Silverstein Legal. His practice focuses on representing all areas of the adult industry and his clientele includes hosting companies, affiliate programs, content producers, processors, designers, developers, operators and more. He is licensed in numerous jurisdictions including Michigan, Arizona, the District of Colombia, Georgia and New York. Contact him at MyAdultAttorney.com, corey@myadultattorney.com and (248) 290-0655.
