EFF Urges Congress Not to Dismantle Section 230

The Keys to a Healthy Internet Are User Empowerment and Competition, Not Censorship

The House Energy and Commerce Committee held a legislative hearing today over what to do with one of the most important Internet laws, Section 230. Members of Congress and the testifying panelists discussed many of the critical issues facing online activity like how Internet companies moderate their users’ speech, how Internet companies and law enforcement agencies are addressing online criminal activity, and how the law impacts competition. 

EFF Legal Director Corynne McSherry testified at the hearing, offering a strong defense of the law that’s helped create the Internet we all rely on today. In her opening statement, McSherry urged Congress not to take Section 230’s role in building the modern Internet lightly:

We all want an Internet where we are free to meet, create, organize, share, debate, and learn. We want to have control over our online experience and to feel empowered by the tools we use. We want our elections free from manipulation and for women and marginalized communities to be able to speak openly about their experiences.

Chipping away at the legal foundations of the Internet in order to pressure platforms to play the role of Internet police is not the way to accomplish those goals. 

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Recognizing the gravity of the challenges presented, Ranking Member Cathy McMorris Rodgers (R-WA) aptly stated: “I want to be very clear: I’m not for gutting Section 230. It’s essential for consumers and entities in the Internet ecosystem. Misguided and hasty attempts to amend or even repeal Section 230 for bias or other reasons could have unintended consequences for free speech and the ability for small businesses to provide new and innovative services.” 

We agree. Any change to Section 230 risks upsetting the balance Congress struck decades ago that created the Internet as it exists today. It protects users and Internet companies big and small, and leaves open the door to future innovation. As Congress continues to debate Section 230, here are some suggestions and concerns we have for lawmakers willing to grapple with the complexities and get this right.

Facing Illegal Activity Online: Focus on the Perpetrators

Much of the hearing focused on illegal speech and activity online. Representatives and panelists mentioned examples like illegal drug sales, wildlife sales, and fraud. But there’s an important distinction to make between holding Internet intermediaries, such as social media companies and classified ads sites, liable for what their users say or do online, and holding users themselves accountable for their behavior.

Section 230 has always had a federal criminal law carve out. This means that truly culpable online platforms can already be prosecuted in federal court, alongside their users, for illegal speech and activity. For example, a federal judge in the Silk Road case correctly ruled that Section 230 did not provide immunity against federal prosecution to the operator of a website that hosted other people’s ads for illegal drugs.

But EFF does not believe prosecuting Internet intermediaries is the best answer to the problems we find online. Rather, both federal and state government entities should allocate sufficient resources to target the direct perpetrators of illegal online behavior; that is, the users themselves who take a