The impact on the public sphere has been, to say the least, substantial. In removing so much liability, Section 230 forced a certain sort of business plan into prominence, one based not on uniquely available information from a given service, but on the paid arbitration of access and influence. Thus, we ended up with the deceptively named “advertising” business model—and a whole society thrust into a 24/7 competition for attention. A polarized social media ecosystem. Recommender algorithms that mediate content and optimize for engagement. We have learned that humans are most engaged, at least from an algorithm’s point of view, by rapid-fire emotions related to fight-or-flight responses and other high-stakes interactions. In enabling the privatization of the public square, Section 230 has inadvertently rendered impossible deliberation between citizens who are supposed to be equal before the law. Perverse incentives promote cranky speech, which effectively suppresses thoughtful speech.
And then there is the economic imbalance. Internet platforms that rely on Section 230 tend to harvest personal data for their business goals without appropriate compensation. Even when data ought to be protected or prohibited by copyright or some other method, Section 230 often effectively places the onus on the violated party through the requirement of takedown notices. That switch in the order of events related to liability is comparable to the difference between opt-in and opt-out in privacy. It might seem like a technicality, but it is actually a massive difference that produces substantial harms. For example, workers in information-related industries such as local news have seen stark declines in economic success and prestige. Section 230 makes a world of data dignity functionally impossible.
To date, content moderation has too often been beholden to the quest for attention and engagement, regularly disregarding the stated corporate terms of service. Rules are often bent to maximize engagement through inflammation, which can mean doing harm to personal and societal well-being. The excuse is that this is not censorship, but is it really not? Arbitrary rules, doxing practices, and cancel culture have led to something hard to distinguish from censorship for the sober and well-meaning. At the same time, the amplification of incendiary free speech for bad actors encourages mob rule. All of this takes place under Section 230’s liability shield, which effectively gives tech companies carte blanche for a short-sighted version of self-serving behavior. Disdain for these companies—which found a way to be more than carriers, and yet not publishers—is the only thing everyone in America seems to agree on now.
Trading a known for an unknown is always terrifying, especially for those with the most to lose. Since at least some of Section 230’s network effects were anticipated at its inception, it should have had a sunset clause. It did not. Rather than focusing exclusively on the disruption that axing 26 words would spawn, it is useful to consider potential positive effects. When we imagine a post-230 world, we discover something surprising: a world of hope and renewal worth inhabiting.
In one sense, it’s already happening. Certain companies are taking steps on their own, right now, toward a post-230 future. YouTube, for instance, is diligently building alternative income streams to advertising, and top creators are getting more options for earning. Together, these voluntary moves suggest a different, more publisher-like self-concept. YouTube is ready for the post-230 era, it would seem. (On the other hand, a company like X, which leans hard into 230, has been destroying its value with astonishing velocity.) Plus, there have always been exceptions to Section 230. For instance, if someone enters private information, there are laws to protect it in some cases. That means dating websites, say, have the option of charging fees instead of relying on a 230-style business model. The existence of these exceptions suggests that more examples would appear in a post-230 world.
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