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“The right to swing my fist ends where the other man's nose begins.”

— Oliver Wendell Holmes Jr.

Internet speech is not entirely free — anywhere

Section 230 of the Communications Decency Act of 1996 is much celebrated as “the 26 words that created the internet.”

“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.”

With that declaration, companies like CompuServe (and later Facebook, Twitter, Telegram, etc.) could provide a platform for people to communicate over the internet without being held responsible for what was being communicated.  

Passed in the House by a vote of 420-4, Section 230 was a rare case of bipartisan lawmaking.

More consequentially, it’s at least partially why the modern internet industry is based almost entirely in the US — to the immense benefit of US investors, state and federal tax collectors, and legions of comp sci majors.   

That result was mostly accidental. 

Buried deep in the 128-page Telecommunications Act of 1996, Section 230 was not much more than a footnote — a little-noticed amendment to a law that passed only because it was snuck into a much bigger law.

Its proposal and passage attracted literally zero press coverage at the time, according to Jeff Kosseff, author of a surprisingly engaging book on the subject.

Far from becoming the subject of book-length studies, 230’s immense significance was unimaginable in 1996 — who’d have thought we’d soon be getting all of our news and much of our entertainment from just a handful of social media companies?

And far from being an affirmation of entirely free speech, Section 230 was intended to moderate it.

Specifically, 230 was included as a means to resolve two conflicting court decisions from the 1990s.

In Cubby, Inc. v. CompuServe, Inc., a Southern District of New York judge found that CompuServe could not be held liable for content posted on the “general information” site it hosted because CompuServe did not review any of that content.

In Stratton Oakmont, Inc. v. Prodigy Servs. Co, a New York State judge found that Prodigy could be held liable for content posted to the “bulletin boards” it hosted because it did review some of that content.

(Yes, we’re talking about Jordan Belfort’s Stratton Oakmont, the Long Island bucket shop featured in Wolf of Wall Street.)

This pair of rulings set up a perverse incentive for internet companies to remain fully and deliberately ignorant of what people were posting on their sites. 

Section 230 set out to resolve that with its two main provisions: one that protects online services from liability when they do not remove third-party content — and one that protects them from liability when they do remove content.

In other words: You’re not responsible for what people say on your platform, but please make an effort to stop the really bad stuff. 

Telegram’s founder Pavel Durov appears to have made an insufficient effort to stop the really bad stuff.

Section 230 is not law in France, of course, and even if it were, I’m not sure it would have saved Durov, despite much commentary to that effect on Crypto Twitter.

What I am sure of is this: Durov’s arrest is not an occasion for Americans to be lecturing Europe on the sanctity of free speech.

Because even in the land of the free and the home of the brave, the freedom of speech is not absolute.

If it was, Section 230 wouldn't have been necessary in the first place — and internet speech is no exception.

For that reason, and despite its initial bipartisan support, Section 230 stands on shaky ground.  

As Kosseff documents in his book, courts have been carving out exceptions to 230 for years, and former President Trump attempted to overturn it entirely (by executive order) after Twitter made him angry by fact-checking a few of his tweets in 2020.

Trump was unsuccessful and that is perhaps surprising because many liberals also want 230 repealed — although for the opposite reason of too little fact-checking and content moderation (aka, censoring).

Such is the tightrope that internet (and crypto) companies have to walk pretty much everywhere, with the possible exception of Durov’s adopted hometown of Dubai.

In the US, the continued existence of 230 is likely predicated on the ongoing cooperation of internet companies with federal law enforcement (as implied by the law’s second provision, encouraging content moderation).

Is that so different from France, where Durov’s current incarceration appears to be predicated on his lack of cooperation with French law enforcement?

This seems like a particularly pertinent question for founders in crypto, which is perhaps even more borderless than the internet.

Precisely because it's so borderless, crypto founders will have to be especially cognizant of what borders they cross.

Should even US founders be fleeing for Dubai then?

Probably not unless they get as wealthy as Pavel Durov with a protocol as big as Telegram.

But when they do, they should know that Section 230 might not be there to save them.

— Byron Gilliam

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