An Introduction to Section 230, With Cathy Gellis

Cathy Gellis, veteran Internet professional-turned-lawyer working in the intersection of technology and civil liberties, joins Ellysse and Ashley to explain what Section 230 is, what it does, why it has attracted so much attention and controversy, and what the key players in the debate are saying.

Mentioned:

• Cathy Gellis, “If We’re Going To Talk About Discrimination In Online Ads, We Need To Talk About Roommates.com,” Techdirt, February 19, 2021.
• Cathy Gellis, “How To Think About Online Ads And Section 230,” Techdirt, February 10, 2021.
• Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc).
• Cathy Gellis, “Section 230 Isn’t A Subsidy; It’s A Rule Of Civil Procedure,” Techdirt, December 29, 2020.

Related

• Ashley Johnson and Daniel Castro, “Overview of Section 230: What It Is, Why It Was Created, and What It Has Achieved” (ITIF, February 2021).

Transcript

Copy

Cathy Gellis: How do you possibly offer your services to help people say things if everything that 7 billion people might use your service to say could hold you on the hook and you’d have to be responsible for it?

Ellysse Dick: Welcome to Ellysse and Ashley Break the Internet, a series where we’re exploring the ins and outs of Section 230, the 26-word law taking over everyone’s Twitter feed. I’m Ellysse Dick, Research Fellow at the Information Technology and Innovation Foundation. We’re a tech policy think tank based in Washington, D.C.

Ashley Johnson: And I’m Ashley Johnson. I’m a Research Analyst covering Internet policy at ITIF. In this episode, we’ll be answering essential questions about Section 230 of the Communications Decency Act: What it does, why it has attracted so much controversy, and what the key players in the debate are saying. Joining us, we have Cathy Gellis, a lawyer whose practice focuses on intellectual property, free speech, intermediary liability, privacy, and innovation policy. Welcome to the podcast, Cathy,

Cathy Gellis: Thanks for having me.

Ellysse Dick: So, Cathy, let’s get started with the absolute basics. Can you tell us a little bit about what is Section 230, and why does it matter?

Cathy Gellis: So Section 230, for all the attention it gets, actually does something very simple. It basically says that whoever posts content on the Internet is responsible for whatever may have gone wrong with that content on the Internet, but not the service they use to get it out there on the Internet.

And this is important, because the Internet works with a lot of handshaking. You sort of need somebody to help somewhere along the line for whatever you put on the Internet to get posted, sent, received, saved, et cetera. We need helpers. So in order to make sure that those helpers can exist, we don’t make them liable for the help they gave to people to say things. But the people who said those things are still responsible for the consequences of what they said.

Ellysse Dick: So one of the buzzwords that we hear a lot when we talk about Section 230 is this fundamental concept of intermediary liability. Can you give a brief description of what that actually means and maybe what it doesn’t mean?

Cathy Gellis: So, what I was saying before about the helpers, we use lots of terms, I’ve used helpers somewhat colloquially, sometimes we use platforms, the way the statute writes it, it calls it an interactive computer service provider, somebody’s providing a service so that speech and expression can get exchanged online. And intermediary liability is the principle that you’re your brother’s keeper. That if you help somebody make some speech, you are now responsible for how they used your service to make the speech.

And sometimes that might seem tempting on a very macro level, but when you consider the full scale of what does it mean to be an Internet service provider and how many users and how much diversity and expression and sheer volume of expression—that won’t work. How do you possibly offer your services to help people say things if everything that 7 billion people might use your service to say could hold you on the hook and you’d have to be responsible for it? And that’s not possible and it would chill the platforms. They’d either not exist at all, or they’d have to turn away an awful lot of speech that we might actually like to have.

They wouldn’t be able to moderate it and make our online ecosystem better. This is not the world we want to live in. We don’t think that this would be a very good Internet. And so we have the concept of intermediary liability protection to make sure that, let’s just not go down that road. People are responsible for what they say, but let’s make sure that the helpers that we need so they can say it can actually exist.

Ashley Johnson: So a lot of people don’t know that Section 230 actually has two main provisions, (c)(1) and (c)(2), or don’t understand how these two provisions are different. Can you explain the difference between them and more or less what they say?

Cathy Gellis: Yeah, the big one is Section (c)(1). Section (c)(1) basically is, the lawyer-ese, although it’s very simple as Jeff Kosseff’s book talks about it, it’s The Twenty-Six Words That Created the Internet, and what those 26 words say is, whoever says the content is responsible for whatever may be wrong with it, but not the interactive computer service provider that helped them say it. And those 26 words do an awful lot of the heavy lifting when it comes to the Internet.

A big way that they help is that it means that if they let their services be used to facilitate less desirable speech, that’s okay. If they leave up a little bit too much bad stuff, that’s fine, it’s what’s saying they’re not going to be liable for that bad stuff. And that means that they’re in the position to be available to let up as much potentially good stuff as possible, because they don’t have to be scared that if they didn’t make that cutoff decision correctly, that they’d end up on the hook for it. So it gives them a lot of freedom to be as available as possible.

Then there’s a second thing that Section 230 does overall, and that’s allow platforms to moderate the content so that if they happen to see certain content and they’re like, “This just isn’t cool. We’re not comfortable with having this on our services,” it allows them to say no to it. Now, Section (c)(2) is a provision that speaks towards their ability to say no to content by also making it that they can’t be liable for those decisions, but in reality and in practice, actually it turns out that Section (c)(1) also has the effect that when this has come before the court Section (c)(1) is also articulating that protection.

Ashley Johnson: What are some of the common misconceptions that you see regarding Section 230?

Cathy Gellis: Well, one of them, and just to clarify my previous point, is it’s not necessarily Section 230 that’s giving platforms the discretion to leave up the most content or take down content as they see fit. The reality is, that’s the First Amendment, because the rights of association and editorial discretion, that stuff that’s baked into the First Amendment and the platforms—and I’m just using the platforms as a shorthand—that the platforms would be allowed to decide to do. The problem is, it’s very nice to have First Amendment rights and let me not sneeze at that, it’s very nice to have First Amendment rights, but they need to be meaningful. The problem is, litigation in America is expensive and if you have to go to court to defend your First Amendment right, you’ve spent an awful lot of money. And if you’re spending an awful lot of money in an awful lot of situations because people keep dragging you before the courts, that’s great that you have a First Amendment right to exercise editorial discretion, but it’s just not usable for you.

So what Section 230 actually does is, it doesn’t really create anything that’s new, but it restates the situation somewhat more clearly and in the Internet context and it functions, and I’m starting to frame it as a rule of civil procedure, that basically means that you can’t drag the platforms before the courts to find out that they were actually allowed to do what it is that you’re complaining about. It basically means that the court cases cannot go forward and that means that it’s now economically viable for the platforms to continue to be platforms. So that’s one big misconception, that Section 230 is actually creating the Internet ecosystem substantively. It’s just sort of making sure that the First Amendment can actually act on it in a meaningful way.

Ashley Johnson: So why has Section 230 attracted so much controversy, especially in the past few years?

Cathy Gellis: I think there’s a lot of reasons, but I think a lot of it boils down to, the Internet is a big place, this is the first time in human history that 7 billion people could actually talk to each other and we’re not particularly good at it necessarily. There are some bad people out there wanting to say and do bad things with the Internet and when they do, the impact of those choices can have a very significant ripple in the rest of the world and we can look at some of the things that people use the Internet for and be very, very alarmed. I don’t want to minimize that there’s some bad stuff out there.

But what happens is, we tend to get an outsize notion of the bad stuff, that we tend to ignore the good stuff, take it for granted, don’t recognize that it’s happening, get very focused on the bad stuff, and now we end up employing some very oversimplified math. There’s bad stuff on the Internet, therefore, the Internet is bad, and therefore Section 230 that allows the Internet to exist must therefore also be bad. So, if we want to get rid of the bad stuff, let’s just get rid of Section 230, because, but for Section 230, everything would of course be fine, which is not true. That’s not the actual mathematics that explains the Internet.

But I think that gets a lot of the attention so that when people are trying to react, quite reasonably, to some of the bad things that happen on the Internet and the consequences to the rest of society, we want to do something, but I don’t think we’re necessarily putting in the full rigor of analysis of what that something should be. And Section 230 is becoming a very convenient scapegoat and now it’s also the hot topic and hot term and so people who feel like they must do something are picking that as the something to go pick on.

Ellysse Dick: So let’s talk a little bit about these different people that are involved in the conversation. Who are some of the key players in this debate? Obviously we have members of Congress and other politicians, who else is involved in the discussion and whose voices should we be listening to?

Cathy Gellis: There’s a lot of people out there, and this has a bipartisan quality, although not for necessarily the same reasons. You have people out there who are complaining that they are losing access to the online platforms to say things, because again, the platforms are exercising their rights of association and saying no, we don’t want to have anything to do with what you’re saying. Then you have some people who see that there’s still certain expression that is on the Internet and they don’t like that expression and they want to target Section 230 to make sure that platforms can’t enable that sort of expression in the first place.

And we see this, for instance, with complaining about discriminatory jobs, discriminatory housing, things like that. Discrimination is not great, that’s a perfectly reasonable value to conclude and the fact that some of that expression is still nevertheless out there on the Internet, they’re trying to sort of tie the platforms more directly to that particular speech in order to make sure that the platforms get rid of it. The problem is, that doesn’t work, that doesn’t work at scale, and it’s also got some First Amendment problems. Sometimes discriminatory speech actually is constitutional.

I wrote a piece recently about the Roommates.com case where actually the upshot of that case was they were worried about discriminatory roommate ads and by the time the Ninth Circuit got done with the litigation, they discovered that actually it turned out that it was perfectly okay to discriminate in roommate ads because of our First Amendment rights of association, how intimate that relationship was. So you run into some problems when you try to make some of this illegal, both in terms of speech having its own native protections and also the policy values may not actually be clear.

And then there’s the fact that we don’t necessarily agree. Even if we take the position that a lot of the people gunning for subject matter exceptions to Section 230 are pushing for, that they’re right, that this is not good speech, and we really should have less of it, we don’t necessarily get a consensus. And that lack of consensus is a good reason why we shouldn’t be in the business of trying to carve out exemptions and more heavily weight certain types of speech that it can stay up or certain types of speech that it can’t stay up. The First Amendment knows that we’re not going to agree and Section 230 tries to make it meaningful to say let’s just get out of the business of trying to decide what speech is correct and give people the freedom to figure things out on their own.

Ellysse Dick: I think you make a great point that one of the major contributions of Section 230 is allowing for disagreement, which obviously is very important for speech and also for just generally having an information economy that’s functioning and thriving. So, in addition to the people who are having these debates, who are the players that are going to be impacted by this conversation? Who is using Section 230, who benefits, and who could stand to lose if there are changes to the law?

Cathy Gellis: I think what people don’t realize is the answer is, who will be affected? It’s everyone. And I think we regard this as a Big Tech issue to our detriment. I sometimes make the point that if you have a Facebook post—and not everybody uses Facebook, but it’s a common thing that a lot of us understand—and you have a Facebook post and you post a picture of your kid and somebody comes along and comments on that and says, “Your kid is ugly,” do you want to have to keep that up? No, you want to have the ability to take that comment down. And if somebody comes around and says, “Your kid is gorgeous and intelligent, and you’re a fabulous parent,” you wouldn’t want to feel any legal compunction to take that down.

And let’s say it’s not comments about your kid, but it’s just sort of somebody says something else, a political fight breaks out, people, their words and rhetoric get heavy and sloppy, and they’re saying terrible things, and maybe they’re defaming each other. You may not want that on your Facebook page, but let’s say you haven’t logged on in a while and you didn’t even know it was there, you don’t want to be liable for that. And Section 230 insulate at a scale that ranges from Google down to the individual user and all sorts of platforms of all sorts of shapes and sizes, commercial, nonprofit, losing money, making money, and all levels in between.

So, if we’re talking changing Section 230, we are talking about disrupting the use of the Internet for way more people than I think the people agitating for reform recognize. From individual users to big companies and every type of service in between, your online encyclopedias and your email providers and your social media platforms and your broadband pipes, and this, that, and the other thing. Every aspect of Internet use, it boils down to an Internet service and it’s all under fire if we change Section 230.

Ashley Johnson: So, I’m going to give a little bit of a spoiler for our future podcast episodes. We talk to a lot of different Section 230, free speech, and content moderation experts on this podcast, and so far, of the ones that we have interviewed, none have advocated for repealing Section 230 completely, because doing so would have such detrimental impacts. Can you explain some of the effects that repealing Section 230 would have?

Cathy Gellis: Well, the point I made earlier about how I think it really functions more as a rule of civil procedure to make First Amendment rights meaningful is a critical one. The problem when we start poking holes in it, or making it conditional, is that you end up spending your money on litigating whether Section 230 applied to you. But if you have to litigate whether it’s an applicable defense, it kind of no longer has any utility, because the point is to save you from the cost of having to defend your existence as an Internet service and it doesn’t really matter what you’re arguing about. If you have to argue whether you get to dismiss the case, you might as well have just argued on the merits and defended it on the First Amendment values upfront anyway, so all of a sudden it’s not very useful.

So the more we try to tier it in terms of who is eligible, the bigger the problem, because that’s a whole battleground for litigation. There more we try to carve out certain types of speech, that becomes a battleground for litigation. And in the instances where we have tried to carve out certain types of speech, and I’m pointing to the FOSTA amendment from a few years ago, it had huge collateral damage on the Internet, partly because it was really badly drafted so it’s very difficult to figure out under the best of circumstances what speech is targeted. But I’m not sure there’s a way to really clean that up in a way that it wouldn’t have accidentally taken out an awful lot of lawful speech and so platforms got out of the business of facilitating any sort of speech that could remotely apply to that exemption, because it was not worth the potential litigation costs and worse, criminal liability that they associated with it, so they just got out of the business.

But as a result, lawful speech is not getting posted and even potentially not lawful speech from sex workers, they couldn’t get access to the Internet and that meant that they’re still plying their trade, but now they’re plying it in the streets where they’re actually getting injured by people who are abusing them, whereas when they were able to ply their trade using Internet tools, they had a lot more agency and control and were able to sort of protect themselves much more substantially. So, in the process of trying to help them, we ended up hurting them significantly. And so, that’s the thing, the more complicated it becomes, the less useful it is. And I don’t think it takes too many more holes before it essentially becomes game over, and yeah, it’s on the books, but it’s just not doing anything worthwhile.

Ellysse Dick: So, looking at the debate today and going forward, do you think intermediary liability protections will change in any meaningful way in the next few years? And if they did, what would that look like? And also, what would you like to see happen? Do you want to see change or would you like it to just stay as it is?

Cathy Gellis: I would not like to see change, but at the same time, what I think is, the problem we have is that the only effective Internet laws that we really have right now are Section 230 and I think that’s partly why it keeps getting attacked, because it’s kind of the only game in town and if the Internet is working and that’s why, then if we’re not happy with things about the Internet, we attack Section 230. I think there’s opportunities for other forms of policy. It’s not that I want to take the position that everything’s fine and let us never speak of Internet policy ever again, go away, game over, we’re done, we solved this. I think we solved this part pretty darn well in 1996 and I really don’t want to see Section 230 any more disrupted than it already is and my wish list would be to roll back FOSTA, probably close up the IP exemption, and get rid of the typo.

So look, I’m for reforming Section 230 in a couple of narrow ways, but otherwise, hands off. This was the piece that’s working, but it never changed the fact that people could still be liable for the crappy things they do on their own and if that’s a problem, then let’s figure out what the appropriate regulatory response is to deal with the people who used it inappropriately. What are the other social responses that we can make as a society to bad speech, bad acts, things like that? And then carve out, it’s not to say that necessarily every Internet company is doing things brilliantly, spectacularly, or in ways that we want to necessarily not nudge back into more constructive directions, but let’s look for other tools we can do to nudge them more effectively.

Section 230 is an interesting law, because the way it regulates is not by being punitive, but by aligning incentives to make it that the platforms can be partners. And if Congress wants the most good stuff on the Internet and the least bad, it makes the platforms feel safe to be partners and try to do that. We have other tools in our regulatory tool belt other than saying “thou shalt not” and passing a lot of laws that are punitive, and more subject areas than just this to look at, to try to nudge behavior, even if we did think we need to use a more punitive tool to get it. So that’s where I think we should be focusing our energy, on carefully fixing what’s actually broken, but not going after the piece that isn’t.

Ashley Johnson: So, for our final question that we’re going to ask all of our guests, we want to know what your verdict is on Section 230, should we keep it, amend it or repeal it?

Cathy Gellis: Keep it, possibly clean it up and get rid of FOSTA and the IP exemption, but hold onto it really tightly. It was an astronomically good law that, I think, has served us much better than people realize. And if anything, we should probably be modeling future laws based on its approach, but let’s not mess it up. I think the consequences of what would happen if we did are far worse than what its alleged reformers think. And no matter how well intentioned those reform efforts are, I think they would be very disappointed by what the outcome would be. It wouldn’t advance the things that they care about, it would only actually hurt the causes that they’re trying to vindicate.

Ashley Johnson: Thanks so much for joining us, Cathy. If you want to hear more from Cathy, you can follow her on Twitter @CathyGellis. That’s it for this episode, if you liked it, then please be sure to rate us and tell friends and colleagues to subscribe.

Ellysse Dick: You can find the show notes and sign up for our weekly email newsletter on our website, itif.org. Be sure to follow us on Twitter, Facebook, and LinkedIn @ITIFdc.