What were we thinking in 1996 when we approved Section 230?
Mountains of reports have been written about Section 230 of the Communications Decency Act, the now famous 1996 provision that gives internet platforms like Google, Facebook and Twitter immunity from responsibility for content posted by others. Numerous bills have been introduced to modify it, and the FCC has begun a major proceeding. Not as much noticed, but equally important, is a broader effort by the European Union to update its comparable treatment of these same internet platforms. The EU effort would, among other things, update the EU’s counterpart to Section 230, found in Article 12 of its 2000 e-Commerce Directive.
For those who have not followed this debate, while the 1996 U.S. Section 230 says that “no provider… of an interactive computer service… shall be treated as the publisher or speaker of any information provided by another,” the EU’s 2000 Article 12 says that “Member States shall ensure that the (internet) service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission.” Broadly, both provisions say that an internet platform is basically not responsible or liable for the content that users post on it.
I am confident that few directly involved in support for either Section 230 or Article 12 had any idea at the time that today we would be in the midst of such enormous controversies. I can say this because I was involved in the approval of both Section 230 and Article 12. It is important to understand the internet policy environment in 1996, how it shaped our perception of Section 230 and how it’s different from today. In this respect, 1996 is probably as different from 2020 as 1996 was from 1966.
In the U.S., Nintendo 64 arrived, Braveheart won Best Picture, Atlanta hosted the Olympics, Macarena was the top song, Ford Taurus was the top-selling car, Tiger Woods played in his first PGA Tour, Fox News Channel launched, and Compaq was the top PC vendor. Mark Zuckerberg (founder of Facebook) was in junior high, while Larry Page, Sergey Brin (founders of Google) and Jack Dorsey (founder of Twitter) were undergraduate students. What we would call the technology industry today was in something of a state of turmoil.
In the wireless industry, there was great uncertainty: 38 million cellphones, mostly brick-sized, were in use along with around 61 million pocket pagers. The FCC began auctioning frequencies for something called Personal Communications Services (PCS), which were widely expected to revolutionize the cellphone industry… but no one knew how. Motorola introduced two-way pagers, which many experts believed would dominate the mobile data market, and it introduced its $1,000, popular, pocket flip phone. Operational GPS had just been introduced to the public, with some predicting that GPS would actually be popular someday.
In the networked computing industry, there was great uncertainty. Online Service Providers (OSPs) like America Online (AOL) had signed up around 5 million subscribers for their $20 monthly dial-up service, CompuServe around 2 million, Prodigy around 1 million and others like GEnie several hundred thousand. And in Europe, France Telecom had almost 7 million users for its Teletel/Minitel service. But it was not at all clear whether the market for OSPs had topped out. In the meantime, over 10,000 computer bulletin board services (BBS) were operating in the U.S. alone. At the enterprise level, large network operators like IBM, MCI, ATT and GE were rapidly connecting multi-site businesses into closed, private computer networks.
In the internet (still called the NSFNET by some), there was great uncertainty. The National Science Foundation decided to commercialize the NSFNET (the internet), but no one fully understood what a commercial NSFNET/internet would look like. Around 20 million Americans were using the internet with service provided by Internet Service Providers (ISPs), but most were using an office computer — and many were users who had previously been connected to the government’s NSFNET. Something called the Worldwide Web and the first popular browser were only two years old, with around 200,000 websites. Yahoo search had recently launched and, oh yeah, a banker named Jeff Bezos changed the name of his small, online bookstore from Cadabra to Amazon (because the name begins with an A).
To say the least, networked computer technology and markets were uncertain and confusing, although there was a widespread sense that tectonic changes were afoot.
Into this complex and confused environment entered the issue of government regulation of pornography on these various “interactive computer services.” Porn on computer services had been a hot political issue, giving rise to the question how do we protect children from pornography in a rapidly-changing, confusing, uncertain media like the new computer services?
Both fourth-term Rep. Chris Cox, 44, (R-Calif.) and seventh-term Rep. Ron Wyden, 47, (D-Ore.) had joined the small but growing ranks of public officials with a reputation for being computer-literate. And while neither Congressman held particularly important positions (Republicans controlled both House and Senate) industry deregulation and new technologies were popular themes among both Republicans and New Democrats.
Which is where people like me came in.
In the mid 1990s, IBM was by far the world’s largest and most influential computer and computing business; I joined them to direct their worldwide Internet public policy. At that time, IBM was a partner with Sears in Prodigy, operated the world’s largest computer network service (mostly for governments and large corporations), substantially funded and/or led most computer-oriented industry associations and it directed — by far — the largest computer-oriented public policy operation, with a sizable lobbying presence in the U.S., Europe, Asia, Latin America, and in many states. The internet policy landscape in 1996 consisted of a very few Congressional pioneers, a small group in the Clinton administration, a very few computer, software and telephone companies, a couple of civil liberties groups and a collection of new internet companies. Although IBM was a policy titan at that time, its interest in internet policy was modest.
For most in the Congress and elsewhere, IBM was viewed as “the adult in the room,” whose support gave everyone else political cover. (I recall trying to explain Section 230 to one influential committee chairman, who said he saw no difference between the internet and TV, but was willing to accept Section 230 as long as he could respond to his opponent in a primary or an election by publicly announcing that “I followed IBM’s advice to stop pornography on the internet.” And in one critical meeting with a senior European official, I recall persuading him with that a “mere intermediaries policy” was acceptable because it was only the internet.)
My goal was to seek the least regulatory solution for any problem arising among these new interactive computer services.
Technology tools, such as parental filters, were a great example of a non-regulatory solution… as were incentives to network operators. The problem was that various courts had held that BBS/OSP operators who previewed and approved every posting could be held responsible for these postings (most spectacularly in the case of our own venture, Prodigy.) The logic was that if a computer network operator approves every posting, then the operator cannot claim to have no knowledge of, or responsibility for, those postings that it allows. While this logic may make sense for a physical bulletin board with 20 index cards tacked to it by a controller, it would not make sense for a computer network operator with hundreds or thousands of subscribers, each constantly posting content. So, a computer network operator would probably never screen out any pornography — for fear that it would be responsible for every single thing posted by anyone.
And this is where the Section 230 approach came in: Computer network operators could act like a telephone company, with no responsibility for what people say on the phone. On its own, however, this approach would not only not curtail pornography, it might even increase it, since few network operators would block porn if doing so might make them responsible for everything else posted. The incentive for network operators to curtail online porn was protection from responsibility for any porn that got through. When that protection was expanded to BBS/OSP/ISP responsibility for virtually all third-party postings, however, the breadth of this protection concerned some in the Congress.
In the end, I was persuaded to support blanket (more than porn) platform authority to control content with nearly blanket protection from responsibility for virtually all postings by the logic of competition: each BBS needed the ability to customize its own content so that it could distinguish itself from each of the other BBSs/OSPs, but it shouldn’t be penalized for doing so. A “motorcycle BBS” could not allow postings about “mushrooms,” but taking down mushroom postings should not make the BBS responsible for every single post. Consequently, I advised IBM’s lobbyists in Washington, Europe and elsewhere as well as quite a few industry groups that we supported the unusual Section 230/Article 12 formula: flexibility without third party liability. I — and I think others — fully expected that the future would look much like the past: thousands of small BBSs, Web-based services, each with a tiny share of the market with a few larger OSPs.
Obviously, I was wrong… but I was in good company.
No one foresaw the enormous internet platforms of today. While there are hundreds of millions of websites and billions of internet users, centrally-controlled advertising has dominated networked computing — and the open internet has eliminated almost any competition from private computer bulletin boards or private networks. Importantly, the logic behind my 1996 decision to support Section 230 and Article 12 was never based only on the inherent nature of interactive computer networks. It was always based on both the nature of such networks and the structure of the marketplace in which they operate. A simple thought experiment bears this out: If there are 1,000 small bulletin boards in your town, then what anyone posts on them should largely be left to the operators, readers and the market. But if there is only one bulletin board in your town, then everyone will be interested in what is posted or not posted and why. While one can debate the theoretical possibility of new competitors, that does not change the logical link that I and others embraced in 1996 between the protection given to “mere conduits” and the presumption of a genuinely competitive environment.
The theoretical logic that a computer bulletin board operator or an internet platform should not be responsible for the content posted by others remains as sound today as it was in 1996; however, that logic was always closely linked to the presumption of robust competition among many diverse operators.
Roger Cochetti has not been associated with IBM for 20 years. He provides consulting and advisory services in Washington, D.C. He was a senior executive with Communications Satellite Corporation (COMSAT) from 1981 through 1994. He directed internet public policy for IBM from 1994 through 2000 and later served as Senior Vice-President & Chief Policy Officer for VeriSign and Group Policy Director for CompTIA. He served on the State Department’s Advisory Committee on International Communications and Information Policy during the Bush and Obama administrations, has testified on internet policy issues numerous times and served on advisory committees to the FTC and various UN agencies. He is the author of the Mobile Satellite Communications Handbook.