What is Section 230, and Why is it Stirring Up Drama on Capitol Hill?

By John Banks

The National Defense Authorization Act (NDAA) is an annual bill, passed by Congress, that authorizes the U.S. defense budget. It is the primary means by which America funds its military.

For fiscal year 2021, the NDAA laid out a defense budget of just over $740 billion. That money is used for everything from paying soldiers to running military bases to maintaining the nuclear arsenal (and a whole lot more).

Because the NDAA is so important — America does not have a functional national defense without it — the bill passes every year without fail. The first NDAA bill was signed into law in 1961, and a new one has passed every year since.

On Dec. 1, President Trump threatened to veto the NDAA for fiscal year 2021 through a series of late-night tweets. (A presidential veto could block the bill’s passage.)

The Presidential Tweets demanded a repeal of an internet-related free speech protection law known as CDA Section 230, with text from the President as follows:

Section 230, which is a liability shielding gift from the U.S. to “Big Tech” (the only companies in America that have it – corporate welfare!), is a serious threat to our National Security & Election Integrity. Our Country can never be safe & secure if we allow it to stand…..

…..Therefore, if the very dangerous & unfair Section 230 is not completely terminated as part of the National Defense Authorization Act (NDAA), I will be forced to unequivocally VETO the Bill when sent to the very beautiful Resolute desk. Take back America NOW. Thank you!

A veto of the NDAA would be a huge deal to put it mildly. Without the NDAA, the national defense budget does not get funded.

From a national security perspective, the idea of shutting down the U.S. military is simply unthinkable. That is why the NDAA passes every single year, without fail, and has done so for fifty-plus years. You don’t mess with national defense.

If the President decided to actually veto the NDAA — which he could do by sending it back to Congress unsigned — it is a near certainty that the U.S. Congress would override the presidential veto by way of two-thirds majority vote. 

It is also possible the President could exercise what is known as a “pocket veto,” which cannot be overridden. With a pocket veto, the White House would simply take no action on the bill, neither signing it nor sending it back, until the window for passage expires. (It is called a “pocket veto” because the action is akin to the president putting the bill in his pocket, and keeping it there.)

It is possible President Trump could exercise a pocket veto if his demands are not met. But this course of action is extremely unlikely because again, if the NDAA does not pass, it would create an immediate national security crisis.

The odds are overwhelming that the NDAA will pass, the military will get its funding for 2021, and the president’s demand to repeal Section 230 will not be met.

Axios reports that, on Dec. 2, Republican Sen. Jim Inhofe was overheard telling President Trump loudly, via cellphone, that the NDAA bill would not meet either of his demands —  neither repealing Section 230, nor an earlier demand halting the renaming of military bases named after Confederate generals — implying the president would simply have to accept this.

“This is the only chance to get our bill passed,” Inhofe reportedly added.

Putting aside the tiny (but nonzero) chance of a national defense crisis if Trump decides to pocket veto the NDAA, it feels worthwhile to take a closer look at Section 230, an obscure section of a nearly 25-year-old law that has stirred the president’s ire and created headaches for big tech.

The first thing to know is that, contrary to the president’s assertion in his tweets, Section 230 applies to far more than just “Big Tech.” It touches thousands of companies, if not hundreds of thousands, from the largest tech giants all the way down to individual bloggers and local internet service providers.

In fact, Section 230 is considered by the Electronic Frontier Foundation (EFF) to be “the most important law protecting internet speech” and “one of the most valuable tools for protecting freedom of expression and innovation on the internet.”

Formally known as CDA 230, Section 230 is a part of the Communications Decency Act (CDA) of 1996.

In the mid-1990s, an effort was made to legislate speech issues around the internet. This gave birth to the CDA, which, according to the EFF, was originally intended to restrict free speech. But thanks to the efforts of the EFF and the early internet community, the anti-free speech provisions of the CDA were ultimately struck down by the U.S. Supreme Court, while Section 230 of the law remained.

The key passage in Section 230 reads as follows:

“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.”

The passage is a legal liability shield. It basically means that a host of third-party content cannot be sued for the nature of that content.

This means that, say, Google cannot be sued for objectionable third-party content in a YouTube video. It also means Facebook cannot be sued for objectionable content in Facebook posts, and that Amazon cannot be sued for objectionable content in product reviews.

But Section 230 extends far beyond the big platforms. It also protects internet service providers (ISPs), who might otherwise have legal risk for providing bandwidth to an objectionable website. It even protects individual bloggers who host their own sites, to the extent a third-party commenter might put something lawsuit-worthy in the comment section.

Last but not least, Section 230 protects third-party hosts from lawsuits related to the removal of content. If a website decides to remove third-party content that someone posted, for whatever reason, the third-party poster can get angry and complain. But they can’t sue.

The bottom line is that President Trump’s demand that Section 230 be “completely terminated” is not just unworkable, it is functionally impossible.

This is because, without Section 230, much of the internet would have to shut down — or restrict free speech dramatically — for fear of being sued into oblivion. The top-tier social media platforms would be at risk of facing hundreds of lawsuits per week, and countless smaller web-oriented businesses would be at risk of legal bankruptcy.

In Washington, Section 230 has stirred up anger on both sides of the aisle due to questions and frustrations relating to political speech. Republicans have said they feel censored by big tech social media platforms, whereas Democrats have accused Facebook of allowing hate speech and disinformation to flourish.  

If Section 230 were to actually be repealed, though, it wouldn’t make anyone happy. Public venues for free speech of any kind would simply disappear en masse. Google, Facebook, Twitter, Amazon, and many others would instantly face massive legal liability in the absence of Section 230’s protective umbrella, necessitating a drastic response. So would smaller social media sites, internet service providers all over the country, and any website that hosts unmonitored third-party comment sections, for that matter.

What the U.S. Congress really needs to do is reform Section 230 to deliver a more nuanced take on political speech. When it comes to the political speech angle, everyone is upset with the current configuration of things. Some parties feel censored, others feel that propaganda, disinformation, and hate speech are not being filtered strenuously enough, and the platforms themselves feel like they are caught in the middle of a brawl, with Republicans on one side and Democrats on the other.

As explained, the answer is not to repeal Section 230 outright. That simply won’t work. It would cause a stock market crash if it actually happened, as the sudden legal liability foisted on hundreds if not thousands of publicly traded companies (far more than just Big Tech) would create chaos.

The actual answer, though, is extremely tricky and challenging.

Reforming Section 230 in a logical way, while retaining the free speech platform protections that are vital, would require Congress to engage in an intelligent and informed debate over what the parameters of 21st century political speech should be, and then come to a nuanced, thoughtful, and bipartisan solution as to how reforms should be enacted.

We aren’t holding our breath.