Threats to the Freedom of Speech, Online Regulations & Section 230: Interview with Eric Goldman

As the US is heading towards the recovery period and re-opens states, president Donald J. Trump grabs the attention of all America with his threat to impose regulations on social platforms by signing an executive order. This has awakened the critical case of Section 230 of the Communications Decency Act that protects the freedom of speech online. So, what happens next? What should we be prepared for?

For those of you who are still unaware of the coming threat, we can briefly say that it’s not only about big tech giants and politics. Your right to speak online is under attack too. As a consumer advocacy website that allows everyone to freely express opinions, we can’t be silent. Thus, we stand to defend Section 230, raise the voices of all Americans, and collect opinions in support. One of the experts we’ve recently consulted on Section 230 of the CDA Act is Eric Goldman.

Before getting into the details, we’d like to say a couple of words about Eric Goldman. He is a Professor at Santa Clara University School of Law. In 2019, Eric has received the university’s highest award for scholarly achievements. Today, he supervises the Privacy Law Certificate and co-directs the High Tech Law Institute.  Eric Goldman has extensive expertise in Internet Law and Intellectual Property, so we asked him to share his opinion.

In this interview, Eric Goldman tells us what will happen if the US Senate manages to eliminate Section 230, and how it will affect our lives:

• Significance of Section 230 for every American and the world
• Reasons to attack it and how long it will last
• How it would affect Google and publishers
• Section 230 changes that could be accepted
• Final thoughts

Significance of Section 230 for Every American and the World

PissedConsumer: What is the significance of Section 230 to an average American today?

Eric Goldman: Section 230 is the law that makes the internet go. It's the foundation of everything that we love the most about the internet today. If you look at the list of the top most-used internet services, almost all of them rely on user-generated or third-party content. And the reason they can do that is because of Section 230. So it's the kind of thing that we interact with Section 230 protected services on an hour-by-hour, minute-by-minute basis in our daily lives. It's that fundamental to what we do today.

PC: In your opinion, what would happen to the world if Section 230 is gone or diminished?

EG: If Section 230 doesn't protect internet services, we're going to see a dramatic move towards professionally produced content that is going to be put behind paywalls. So, in order for services to feel confident that they won't be sued to oblivion for publishing content, they're going to go to sources that they have vetted and can trust, but they can't do as many sources as the current environment because of their transaction costs and the lack of confidence.

As a result, what's going to happen is, it's going to look a lot like Netflix. We're going to be paying monthly subscriptions to a Walled Gardens of content and they're going to be professionally produced content. Netflix is wonderful. I love it. It's got a huge database material, but it's not the internet. It's not the way we think about the internet. Netflix acts as a gatekeeper to what content is available in that database, whereas the internet lets us have access to a much wider range of diversity, and it lets us have a voice. So, what's going to happen without Section 230 is, the internet will move into something that looks a lot like Netflix and all of us will be poorer for it.

Reasons to Attack Section 230 and How Long It Will Last

PC: Why is Section 230 under attack right now?

EG: A few things have happened that have really undermined the ecosystem surrounding Section 230, and the first, nearly 20 years on the internet, we still respected the potential of the technology. We thought this could get better, and we're excited to see how it will get better. And with the emergence of the internet incumbents, like Google and Facebook, there's a fear that things have slowed down. That this is as good as it's going to get. So, we don't have the same dynamism and excitement about the potential future of the internet as we become more fixated on the idea, Google and Facebook are the endgame of the internet.

Furthermore, Facebook in particular has made a series of choices that have undermined my trust... I'm sorry… have undermined our trust in Facebook as a reputable, trustworthy player in our ecosystem. And as Facebook makes those mistakes, they start to undermine our confidence that the internet incumbents are actually doing what we want them to do, and that they're looking out for us as a community. So, that creates a precondition to think, we need to fix Facebook, and the way to fix Facebook is to tell it what to do. Now that's censorship, they can't actually do that. But, the idea is, fix Facebook and then we'll all be better, all enjoy society better. And that's what has really created the precondition for Section 230 reform. People are saying, "I need to fix Facebook. Section 230 is stopping me. How can I get around it? Get rid of Section 230 and then we'll be good to go."

The other thing that's happened is that, as we've grown the amount of our lives that we live on the internet, we're seeing more situations where we recognize how bad people treat each other in our society. We can see that. It becomes visible on the internet in a way that we would not have necessarily seen in the offline world, and that horrifies us. We wish that weren't the case, and we want our tools to redress this default baseline level of antisocial behavior amongst humans. And Section 230 looks like it's the blocker for that. So, as the internet has become more popular as a part of our society, it actually exposes things that we wish were different. Section 230 takes the blame for it.

PC: How long do you think Section 230 has?

EG: That's actually a really hard question to answer because there are two different moving parts. First, the question is, how long until Congress irreparably destroys Section 230? And that's hard to gauge because it's not clear when the right mix of proponents and language comes up, and then, when that comes up, it probably will happen pretty quickly. But I don't know what it'll take until that happens. Meanwhile, internationally, the rules are getting much worse internationally, and we're going to see a continued degradation of the international environment, and some of that's going to leach back into the United States. So as internet services that are cross-border are building all this censorious infrastructure in other parts of the world, they're going to build some of that infrastructure for the US, too. It's going to be easy enough to treat it all the same.

So we're going to see the degradation of the things that Section 230 enables because of the international rules getting worse and that leaching back into the US. So how long do we have? I don't know. I've said before elsewhere that 2016 was a high watermark of internet free speech. It's going to be a steady decline from there into the Netflix internet that I described. Is it going to be a slow decline or is it going to be a rapid cliff? That I don't know.

How Section 230 Would Affect Google and Publishers

PC: What would happen to Google? Will Google need to moderate all of its content?

EG: Well, Google and Facebook are special only because they have so many resources and they have such high margins that they might be able to figure out a way to both manage their database to reduce the risk and then insure or self-insure for the things that they missed. It's been incredibly labor-intensive to try and build something that manages risk and still allows for the diversity of voices that we're used to in the past. So, maybe Google and Facebook will figure that out. Nobody else will. So, the most likely scenario is we'll have Google, Facebook, and Netflix-ish, or, you know, the internet that turned into Netflix. That's what I anticipate we're going to see in the internet. I don't see how the small guys win without Section 230. It is the essential lifeblood of their ability to exist and compete.

PC: Do you think the publishing industry will gain if Section 230 is gone?

EG: There's a really mixed view about Section 230 among traditional publishers. On the one hand, many publishers are pro-free speech and they know Section 230 is a benefit to free speech, so they're philosophically inclined to support it. But there's also a lot of envy among traditional publishers that the rules are different for them. That the internet guys get a free pass and the offline people don't. And that dichotomy between legal treatments is that hard for them to understand. So, I do think that there's some skepticism among publishers towards Section 230. I'm not sure if they're going to lead that charge, however, because of the fact that they have such divided emotions.

Section 230 Changes That Could Be Accepted

PC: What are the minimum changes of Section 230 that you would agree to?

EG: So, for example, there are things that Congress could do that would enhance Section 230. For example, I've been a long-time proponent of a federal anti-SLAPP law, a way of providing a fast lane where lawsuits are designed to squelch socially beneficial speech. We need a law like that. We see the abuses of billionaires trying to change the conversation about them using litigation as a weapon. Anti-SLAPP laws are a way of fixing that and it would reinforce some of the other strengths that Section 230 has. So if Congress could do an easy thing to actually make Section 230 better, pass a federal anti-SLAPP law. That's not where the tone of the discussion is today.

The tone of the discussion is, how could we curb the worst parts in Section 230 and still preserve its benefits? And for me, I don't have a standard answer to that, and I feel bad about that. It's a legitimate question. But the reason why is, because everyone has a different reason why they gripe about Section 230. They're each trying to solve a different problem, and there's no one solution that would change Section 230 and address all of the panoply of problems that people are objecting to. So, whenever someone asks me, "How can we minimally amend Section 230 to keep the good stuff and get rid of the bad stuff?" I say, "Be precise. What exactly is the problem you think you're trying to solve? And let's take a look at why you think Section 230 is a problem."

I'll give you one example. A lot of people think that Section 230 allows too much hate speech or critical, antisocial remarks online. And I don't just disagree with them, but if we take away Section 230, the First Amendment is still going to apply to that content. It won't actually advance our objective whatsoever, eliminating Section 230. That'll kind of reduce the volume of that bad content, but they will things materially worse by having changed Section 230. So, my question to anyone who says, "What's your minimum federal trade-off, Goldman?" My question is, "Well, what problem are you trying to solve?" Be very precise about that problem, and then I can start to work with you on an answer. And it might be that you can't fix the problem you're trying to solve, Section 230 reform or not.

Final Thoughts

While heated arguments around Donald J. Trump and Twitter seem to weaken the focus around the pandemic anxiety, it has reminded us about the upcoming threat to the key legislation and freedom of speech. Opinions vary as well as the interpretation of Section 230 of the CDA Act. However, no matter how you treat this legislation, there’s one thing for sure - the Internet will never be the same.

We thank Eric Goldman for his expert opinion and the video interview. He has helped us shed light on the importance of this law for all consumers. As explained by Eric, without Section 230, the Internet will turn into a database with professionally created materials. No more freedom of speech; just moderated content to pay for.

Here, at PissedConsumer, we strive to protect the right of free speech online and the law that lets every American express their mind freely. You can help us in this battle by sharing your opinion.

Tell us would it be ok, if there were no review websites, blogs, and forums to express your ideas? Would you like it if your point of view was moderated? If not, speak up to defend your rights, leave your comment or contact us at media@pissedconsumer.com.