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In February, I gave a TEDx talk at Santa Clara University about the importance of Section 230, online speech, and the complexities of content moderation. I owe a huge thank you to my advisor, Professor Eric Goldman, who not only helped me draft the talk but also took me under his wing as his Internet Law mentee and taught me everything I know about this topic to date. I also owe a major shout-out to the SCU Internet Law Student Organization board, and my parents and husband, who all listened to me rehearse an insane amount of times and gave me nothing but full encouragement and support throughout this entire process. Lastly, I would not have had a platform to speak about this incredibly important issue had it not been for the amazing SCU Tedx Team.

It’s a depressing time to study Internet Law these days. Between the EU’s enactment of  Articles 11 and 17, the disastrous California Consumer Privacy Act, FOSTA, Elizabeth Warren’s misleading campaign slogan #BreakUpBigTech, Senator Cruz’s unfounded rampage against “anti-conservative” bias, and calls for the demise of Section 512, the days of free, open, and global Internet are numbered, if not yet already over. To preserve what little online freedom of speech we have left, it’s important we understand how the Internet operates so that we can do our part in keeping Congress from destroying it. Below is the final revision of my speech for the TED talk. Thank you for taking the time to read or watch!

Section 230: What You Don’t Know Might Destroy the Internet

In trying to come up with the perfect introduction for this topic I spent hours thinking about examples of what life was like before the modern-day Internet, and after becoming incredibly frustrated with that approach, it hit me; I have no idea what it was like, because I, like most of you, was born with the Internet. I don’t know what it’s like to not be able to just email or message someone when I need an instant response. I don’t know what it’s like to not keep tabs on distant family and friends, because I can see what they’re up to on Facebook. I don’t know what it’s like to just be content with not knowing the answer, because I grew up with Google and Wikipedia. I don’t know what it’s like to “stop and ask for directions” because I’ve had Google Maps since I learned how to drive. I prefer Cyber Monday over Black Friday, my morning newsfeeds over the morning newspaper, and the Internet Archive over any brick and mortar library. I take the Internet for granted and I bet most of you do too.

Section 230 of the Communications Decency Act: a law congress passed in 1996 that you’ve probably never heard of. Raise your hand if you’ve heard of the First Amendment. Now raise your hand if you’ve heard of Section 230. We really do take the Internet for granted because we would fight tooth and nail to protect our First Amendment right to free speech, but we don’t even know about the law that enables our “there’s an app for that” lifestyle; a law that these web services we rely on daily, owe their existence to. Section 230 was one of Congress’s greatest Internet policy achievements to date, but because we aren’t talking about it, it’s at risk of being destroyed, by people that don’t understand the Internet and or take it for granted.

So, what is the Internet? Well it’s definitely not a series of tubes. Rather, the Internet is “a unique and wholly new medium of worldwide communication…”

But without Section 230, we stand to lose everything we love about it.

I’m going to tell you a story about a guy named Ken Zeran.

April 19^th 1995, a day that went down in infamy as the Oklahoma City Bombing. 170 people killed, 680+ injured. Regarded as the deadliest terrorist assault on U.S. soil until the 9/11 attacks. On April 25^th, only 6 days after the attack, a user with the screen name “KenZZ03” posted an advertisement to an AOL forum for tasteless Oklahoma City Bombing T-shirts with offensive slogans such as “Visit Oklahoma…It’s a Blast.” The ad included Ken Zeran’s phone number and encouraged users to call for more information. But Zeran was not behind the posting. He was under attack; E-personation as we call it today. Shortly after the post, Zeran received hundreds of harassing phone calls from angry users that saw the offensive message. As, a business owner, he was in no position to change his public phone number so he called AOL and asked them to remove the post, but they were hesitant. The next day, the anonymous user posted another message advertising additional T-shirts, bumper stickers, and keychains with the same tasteless slogans. The message instructed interested buyers to please call back if busy. It got to the point where Zeran received an abusive phone call every two minutes. To make matters worse, a local radio station urged its listeners to call Zeran resulting in more abusive calls and death threats. Eventually, an Oklahoma City newspaper published an article about the anonymous hoax, the radio station issued an on-air apology, AOL finally removed the messages, and the threatening phone calls subsided. But to Zeran, it was too little too late and the damage was already done. So, he sued AOL but lost to Section 230.

These days, social media has the power to end careers so, naturally, it seems completely counterintuitive for us to support a law like Section 230 that seemingly protects companies like AOL over its users like Ken. Or does it?

Section 230, or as Internet Law Professor Jeff Kosseff puts it, “The Twenty-Six Words that Created the Internet,” says: “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.”

What?

My advisor and Santa Clara Internet Law Professor, Eric Goldman, used to offer an A to any of his Internet law students that got the 26 words of Section 230 tattooed in a place not normally covered by clothing. So I did it sort of. I decided not to go through with all 26 words because even to a trained lawyer, Section 230 is gibberish, and I didn’t need the permanent reminder.

Let’s break it down: a provider of an interactive computer service would cover web services like AOL, but interestingly, it also covers websites like Facebook, Twitter, and Google. 230 also states that these providers can’t be treated as publishers or speakers, which is also interesting because the provider, or owner, of a newspaper is considered a publisher for defamation purposes. So, did Congress actually create a law that gives stronger protections to websites than the First Amendment does for the press? They did and that’s what makes 230 powerful. Lastly, these providers are not to be considered publishers of content provided by another information content provider or, third party content. Of course, now we have to figure out the intricate differences between first-party and third-party content, but that’s why we pay lawyers. For now, to simplify, you can think of third-party content as any user-generated content; so, your Tweets or Facebook posts would be covered.

Simply put, Section 230 says “websites are not liable for third party content.” The freedom of online speech.

Pre-230 Internet was depressing. For starters, it cost about $30/hour just to get online and then you couldn’t really do anything online unless you paid for another $5/hour subscription to AOL just so you could send an email. In fact, most people assumed the Internet would operate similarly to cable companies, where instead of paying for access to certain TV and Movie channels, you’d pay for subscriptions to Facebook, Spotify, Gmail, YouTube. Section 230 destroyed the subscription model by making the Internet more accessible for web services like Facebook and Google to enter the market and compete giving us the FREE apps we love and love to hate today.

Pre-230 Internet wasn’t great for webservices either. Chaos and uncertainty arose for web services as they were being sued for their user’s content, usually for defamation when one user would post something negative about another. Web services that chose not to filter their content were rewarded as they were treated as mere content distributors and not publishers. But web services that intended to create a family-friendly environment by pre-screening and filtering user content would be punished as content publishers. They call it, the moderator’s dilemma leaving web services with two extremes. On the one hand, websites could moderate as little as possible, and allow their forums to run rampant with all sorts of harmful and outrageously offensive content. On the other hand, they could moderate aggressively, pre-screen all content, and create a family-friendly environment. Imagine having to scroll through tons of pornography or graphic violence on your Facebook newsfeed. Or if each of your tweets were delayed by an hour so a moderator could pre-screen them. Imagine if YouTube shut down their comments section or Yelp banned negative reviews. Archaic right? If the Internet was to become what it is today, Congress needed to eliminate the moderator’s dilemma and they did so with Section 230. By allowing websites to freely engage in what we call, content moderation, or the process of filtering user-generated content, Congress gave Internet companies the green light to confidently control their platforms while encouraging innovation and free expression online.

If your sympathy for Ken Zeran still has you struggling to understand why AOL’s win was such a monumentally good thing overall, that’s okay. In fact, I struggled with it too. But saving Ken isn’t the takeaway here. Rather, what if social media companies were just as hesitant as AOL was to remove abusive content? What’s eerie about Ken’s story is that today we still don’t know who was behind the posts and why. Perhaps it was an estranged lover, or a business competitor, or simply a random troll. What happened to Ken could have happened to any of us. But AOL’s win set a precedent for Section 230 encouraging platforms to respond to abuse without hesitation, and protecting us from becoming the next Ken Zeran.

These days, it’s not easy to stand up here fighting for social media companies. A study published just last week accused Twitter of having an “anti-conservative” bias. You’ve probably heard the same sort of rhetoric about Facebook and YouTube. But there’s a few flaws with the Twitter study, 22 of them to be exact. First, if you’re going to claim that a social media site with more than 321 million active monthly users is biased, you may want a slightly bigger sample size than 22 banned accounts. And second, if those banned accounts include Sandy Hook Denier Alex Jones, The American Nazi Party, along with other known white nationalists, professional trolls, and holocaust deniers you may want to reevaluate your version of conservatism. Are Twitter and Facebook really anti-conservative or are they actually anti-hate speech?

Senator Ted Cruz mistakenly claimed social media companies are required to maintain neutral platforms, incorrectly comparing them to our offline public forums and town squares. But what if the government really did require Twitter and Facebook to moderate content without bias. Well, first, content moderation is usually done manually by humans, so you’d have to eliminate human bias, which is impossible. But more importantly, remember the archaic pre-230 Internet with the moderator’s dilemma? Social media companies would have to choose the second extreme and ban everything. Content moderation is already incredibly difficult. Mandating neutrality would make it impossible.

In fact, let’s step into the shoes of a content moderator and see what it’s like from their side.

You make the call:

Janie’s a psycho and will get what’s coming to her (gun emoji) (gun emoji) Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?

As a Twitter moderator, would you remove this or keep it? It seems like an easy choice as it sounds like one user threatening another. But what if it’s a song lyric, or a quote from a T.V. show? What if it’s an inside joke? And what’s a PFA? Without any context, the choice to remove or keep is a lot more difficult.

How about this one:

North Korean Leader Kim Jong Un just stated that the “Nuclear Button is on his desk at all times.” Will someone from his depleted and food starved regime please inform him that I too have a Nuclear Button, but it is a much bigger & more powerful one than his, and my Button works!

Twitter policy expressly prohibits tweets that incite or threaten violence. So would you remove this or keep it? If you keep it, are you a hypocrite for letting this user slide just because he’s the President? If you remove it, is your platform anti-conservative?

To reiterate, content moderation is hard; It’s not like these posts come with a neon sign saying THIS IS BAD CONTENT PLEASE REMOVE. But that’s okay, because social media platforms are not neutral public forums, rather, they’re gardens to which moderators tend. Without moderation, the gardens become overrun with weeds or trolls. A garden laden with weeds is fruitless. But with the proper amount of moderation and care, the weeds can be controlled, making way for a bountiful crop or in our case, fruitful and informed discussion. We want social media companies to tend to their Internet gardens as they see fit and Section 230 incentivizes such moderation. Some prefer the government to step in and handle content moderation themselves. But after the Zuckerberg hearing, do we really want the government regulating our Internet?

Unfortunately, we seem to be headed in that direction.

In 2018, Congress passed the first major blow to Section 230’s immunity: The Fight Online Sex Trafficking Act, otherwise known as FOSTA. As you know, sex trafficking is a dark, dangerous, and brutally unforgiving world for those that fall victim. With the dark web and the ability to shield your identity, online sex trafficking is a very real problem, especially for children.

But, the truth is, FOSTA was only framed to stop online sex trafficking when in reality, all it did was bury the problem, making it harder for law enforcement to find sex traffickers while simultaneously forcing legitimate sex workers back on the street to face abuse, harm, and in some cases, death. FOSTA has done nothing to curb online sex trafficking, but everything to censor online speech. FOSTA imposes severe penalties on websites that know or could have known about sex trafficking on their service. So the moderator’s dilemma has returned where websites now opt for the ban everything approach. Craigslist removed their personals section, Tumblr banned adult content, Facebook updated their terms to ban adult speech, and several sites that provided a safe online home for sex workers have either shut down, or banned their sex worker communities. Thanks to FOSTA, The Internet has shrunk.

FOSTA serves as a bleak warning for Section 230’s fate. And that’s why I’m here tonight. With all the hate surrounding social media companies now, the public’s push for Congress to step in has put Section 230 in a dangerous spot and opens the floodgates for more FOSTA-like regulation. Understandably, we’re angry at Facebook and Twitter and Google. But when we’re angry at hate groups, and political controversy, and the deplorable past and present speech of our nation’s leaders, do we push for changes to the First Amendment? Of course not.

Some beg Congress to break up the tech giants in Silicon Valley by enacting more Internet regulation. But ironically, this call to action only exacerbates the “big tech” problem by making it harder for smaller tech companies to enter the market and compete. The truth is companies like Facebook and Google have the financial means and technical infrastructure to handle regulations like FOSTA. Multi-million-dollar fines for violations are merely a drop in the bucket for large tech companies. But that’s not the case for startup companies. Startups see regulations like FOSTA and ultimately decide it’s not worth it. If we want to encourage the bigger companies to do better, we need smaller companies to compete against them and offer superior alternatives for us to jump ship to. If we want to take back control from big tech we need to fight for Section 230.

We claim we want to #SaveTheInternet but how? Start by understanding Section 230 so that when Congress moves to amend or repeal it, we react just as angrily as if they were to amend or repeal the First Amendment. So that when we see celebrities appealing to our emotions, we aren’t so easily persuaded. So when we see a study about social media companies and their overly biased algorithms, we question it. So when Congress proposes the next “Fight Online Sex Trafficking” bill we ask how it might affect Section 230 and we call our representatives demanding them to kill it. And lastly, so when social media companies breach our trust, make poor moderation decisions, and leave us holding the bag, we don’t respond with laws but instead with our online presence. We moderate our own content. We encourage informed discussion. We find another platform. And we log off.

Now, raise your hand if you’ve heard of Section 230 and keep your hands raised if you could explain it to the person next to you. Great. Don’t explain it to the person next to you, go out, explain it to the world, and save the Internet.