pears on their services; and Germany’s
NetzDG law requires online services to
remove online terrorist-related content
within one hour. In theory, “nerd harder”
rules encourage technologists to innovate even more. In practice, “nerd harder” laws either eliminate user-generated
content outright, or lead to a single industrywide standard dictated by legal
considerations, stifling innovation.
In the 1990s, Lawrence Lessig (now
of Harvard Law) distinguished “East
Coast code,” legislation produced by
regulators, from “West Coast code,”
software produced by technologists.
Both types of code can regulate online
behavior, but technologists often prefer West Coast code because it is more
adaptable and usually spurs, rather
than inhibits, additional innovation.
Section 230 is an example of East
Coast code—but with the twist that it
prevents other East Coast code from
controlling user-generated content.
Section 230 has literally sidelined thousands of state and local regulators from
imposing their code on the Internet.
All that is at risk now. Across the
globe and in the U.S., regulators are
aggressively attempting to shape the
Internet to their specifications. This
regulatory frenzy will take more control out of the hands of the West Coast
coders and put it into the hands of the
East Coast coders.
The intervention of East Coast coders
will not help the Internet reach its technological and social potential. Section
230 gave technologists the freedom to
develop the modern Internet. Not every
Internet service has embraced Cox &
Wyden’s hope that they would voluntarily undertake socially responsible content moderation. Still, Section 230 demonstrated that protecting the freedom
to code allows technologists to develop
amazing solutions that produce extraordinary social utility and, concomitantly,
extraordinary social and private financial benefits. Regulators should look for
more opportunities to do that—starting
by protecting Section 230 from becoming the next victim of East Coast code.
Eric Goldman ( firstname.lastname@example.org) is a professor
at Santa Clara University School of Law, Santa Clara,
Copyright held by author.
tens of thousands of content reviewers
like Facebook has. Without Section 230,
online services would need to deploy
industrial-grade content controls at
launch, which would significantly raise
the costs of entry and make it impossible for many innovative services to
reach the market at all.
Third, Section 230 permits diverse
industry practices to emerge. If the law
required mistake-free content moderation, the industry would gravitate
toward a single content moderation
technological solution that minimized
liability. Instead, Section 230 enables
services to choose among a virtually infinite number of content moderation
techniques—allowing services to optimize their content moderation for their
specific audience’s needs. Thus, Facebook can tightly restrict hate speech,
while Reddit can tolerate subreddits
that span a wide ideological spectrum.
Similarly, services competing for an
identical audience can deploy different solutions that become additional
points of competitive differentiation.
Due to Section 230, industry “best
practices” for content moderation did
not get set in stone during the Internet’s earliest days. Instead, best practices for user-generated content continue to iterate, and those iterations
potentially deliver ever-increasing social benefits from content moderation.
Furthermore, because of Section 230,
lawyers typically do not define product
specifications for new user-generated
content services; technologists and
marketing experts do. It means coders
can code without waiting for legal clearance. In a less-favorable legal environment, that will be reversed.
Section 230’s Imperiled Future
Section 230 was a bipartisan law, and
it garnered significant bipartisan support for its first two decades. That has
changed. It has few friends today, and
both Democrats and Republicans have
publicly targeted Section 230. Congress’ gridlock is notorious, but reforming Section 230 has the potential
to gather enough bipartisan cooperation to break through that gridlock.
We have already seen one bipartisan
incursion into Section 230. In 2018,
Congress passed FOSTA, a law that re-
duced Section 230’s immunity for the
advertising of commercial sex. Con-
gress was repeatedly warned that FOSTA
would not actually solve the problems it
targeted, and that it would resurrect the
Moderator’s Dilemma that Section 230
had negated. Despite those warnings,
Congress overwhelmingly passed FOS-
TA. Worse, its sponsors still consider
the law a success, despite the growing
evidence that FOSTA has not helped
victims and has eliminated or degraded
free speech on the Internet.
FOSTA is part of a growing global
trend of imposing criminal liability on
online service executives for not ade-
quately restricting harmful user content.
Australia recently enacted similar liabil-
ity, and the U.K. has proposed doing so
as well. The risk of criminal liability dev-
astates entrepreneurship because entre-
preneurs are willing to risk money, but
they will not risk their personal liberty.
Reducing Section 230’s immunity
invariably would impair the freedom to
design and innovate. (The First Amendment might provide some backup protection, but not enough). For example,
to reduce online service “bias,” some
conservative regulators favor “
must-carry” obligations that force online services to treat all content equally (despite
decades-long conservative opposition
to must-carry obligations in other media). Such a rule would be a policy disaster because it would enable spammers,
trolls, and miscreants to overwhelm services with their anti-social content and
behavior. This policy would also inhibit
new technological ways to filter and
present content because the law would
dictate a single option.
Often, regulators assume that services can just “nerd harder,” that is, magically solve an impossible technological
task. For example, Europe’s Copyright
Directive requires online services to ensure no copyright infringing material ap-
assume services can
just “nerd harder,”
that is, magically
solve an impossible