Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. §230, enacted in 1996, is often cited as the most important law supporting the Internet, e-commerce and the online economy. Yet, it continues to be subject to intense criticism, including from politicians from both sides of the aisle. Many argue that the CDA has been applied in situations far beyond the original intent of Congress when the statue was enacted. Critics point to the role the CDA has played in protecting purveyors of hate speech, revenge porn, defamation, disinformation and other objectionable content.
Critics of the CDA raise valid concerns. But what is the right way to address them? One must remember that for organizations that operate websites, mobile apps, social media networks, corporate networks and other online services, the CDA’s protections are extremely important. Many of those businesses could be impaired if they were subject to liability (or the threat of liability) for objectionable third party content residing on their systems.
The criticism surrounding the CDA hit a fever pitch on May 28, 2020 when the President weighed in on the issue by signing an Executive Order attempting to curtail legal protections under Section 230. While the Executive Order was roundly labelled as political theater – and is currently being challenged in court as unconstitutional – it notably directed the Justice Department to submit draft proposed legislation (i.e., a CDA reform bill) to accomplish the policy objectives of the Order. This week, on June 17, 2020, the DOJ announced “that the time is ripe to realign the scope of Section 230 with the realities of the modern internet” and released a document with its recommendations for legislative reform of Section 230. This is on the heels of a recent initiative by several GOP lawmakers to introduce their own version of a reform bill.