In debate over internet speech law, pay attention to whose voices are ignored

The next time you hear someone call for Congress to gut Section 230, the law that shields online platforms from liability for hosting most speech created by others, ask yourself a quick question: Would the reform this person is asking for affect their ability to use the Internet? If the answer is no, then ask yourself who would be harmed. You’ll start to notice that the marginalized communities affected the most are systematically excluded from debates over Section 230.

Section 230 reflects a simple, common sense principle: If you break the law online, you should be the one held responsible, not the website where it happened. Section 230’s importance to the internet can’t be overstated. If we didn’t have Section 230, some social media services wouldn’t exist at all, or they’d be much more restrictive in whom they allow to participate. That’s why people sometimes call it the First Amendment of the internet.

For the record, I come to the debate over Section 230 from a place of privilege. As a white, heterosexual, college-educated man, I will always have numerous spaces online dedicated to my interests. No matter what the law says, there will always be companies willing to take on the minimal risk involved with accepting me as a member in order to sell my attention to advertisers. That’s not true for everyone.

We’ve already seen what happens when Congress fails to listen to the people it’s pushing offline. Congress passed the so-called Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) last year — the only major change to Section 230 in its 23-year history — despite the objections of many of the people it would directly impact. FOSTA amended Section 230 to create new legal liability for online platforms that sex workers used. Sex worker advocates pled with Congress not to throw sex workers off of the internet and into far more dangerous street-based sex work. Anti-trafficking experts tried to explain to lawmakers how taking sex workers offline would make it harder to find and help people being trafficked.

When the law passed, the internet turned into a more exclusionary place almost overnight. Internet companies became significantly more restrictive in their treatment of sexual speech, taking innocent people off of the internet. The law also threw important harm reduction activities into a legal gray area, making it harder for people in need to get help. And law enforcement agencies around the country report that their work to stop traffickers has hit a wall.

Congress failed to listen to the people it was removing from the internet, and put them in more danger as a result. Amidst today’s calls for more regulation to curb extremism and terrorist speech, we must avoid repeating the same mistake.

The entire history of censorship shows that it magnifies existing imbalances in society, sometimes intentionally and sometimes not. In the same way that a bill intended to fight traffickers made the problem worse, attempts by social media platforms to restrict extremist speech frequently silence the people trying to document and fight violent extremism. That’s not a hypothetical: there are many, many stories of Facebook, YouTube, and Twitter taking down important work to document human rights violations under their anti-extremism policies.

Politicians on both sides of the aisle routinely treat Section 230 as a handout to tech companies — or a “gift,” as Rep. Nancy Pelosi (D-Calif.) recently put it. It’s a mistake to characterize large internet companies as the primary beneficiaries of Section 230. Let’s not forget that Facebook and other big internet companies actively lobbied for FOSTA, a law that made it considerably more difficult for a startup ever to unseat Facebook. You can’t make this up: Just a few weeks after the president signed FOSTA and multiple dating sites shut down, Facebook announced that it was entering the dating business.

Section 230 isn’t a gift to big internet companies. It’s a gift to rural LGBTQ teenagers who depend every day on the safety of their online communities. It’s a gift to activists around the world using the internet to document human rights abuses. It’s a gift to women who rely on dating apps to meet people more safely. Yes, Section 230 is the First Amendment of the internet, but it’s also the Fourteenth Amendment of the internet. Section 230 says, “You are legal here.”

Section 230’s real beneficiaries are the historically disadvantaged communities that would risk exclusion from online discussions without it. Congress must listen to those voices before it’s too late.

Elliot Harmon is Activism Director at the Electronic Frontier Foundation, the leading non-profit defending civil liberties in the digital world. Follow him on Twitter @elliotharmon