Latest / Question Everything / The Scammers and Smut that Sparked the Modern Internet
Transcript
- 0:01Speaker 1: I've got news.
- 0:02Speaker 2: I know a bunch of you have been tracking this,
- 0:04Speaker 2: but the other day it happened. Section 230, the law
- 0:07Speaker 2: that makes it so websites and online platforms aren't liable
- 0:11Speaker 2: for most of what other people post on them, a
- 0:13Speaker 2: law I've been arguing here that we should change, it
- 0:16Speaker 2: finally got some airtime in Congress. And lawmakers, they really
- 0:21Speaker 2: laid into it.
- 0:22Speaker 3: I strongly believe that Section 230 has long outlived its use,
- 0:27Speaker 3: and it is now a real vessel for evil. that
- 0:32Speaker 3: needs to come to an end.
- 0:34Speaker 2: That's Senator Sheldon Whitehouse, a Democrat. He and other senators
- 0:38Speaker 2: from both parties declared at a hearing about children's online
- 0:41Speaker 2: safety last week that they want to move a bill
- 0:43Speaker 2: forward to repeal Section 230. They even put a.
- 0:47Speaker 1: Timeline on it.
- 0:48Speaker 2: They want to bring it forward in time for the
- 0:49Speaker 2: 30th anniversary of Section 230's passage, which is this coming February.
- 0:55Speaker 2: We'll keep tracking developments, of course. It's good timing because
- 0:59Speaker 2: today on the show, We look at that 30 year
- 1:01Speaker 2: history of Section 230 to see.
- 1:03Speaker 1: How we got here.
- 1:11Speaker 2: I've been trying to put myself back in the headspace
- 1:13Speaker 2: of the early 90s to the early days of the Internet,
- 1:16Speaker 2: because if you're a regular listener here, you'll know I'm
- 1:19Speaker 2: trying to figure out how we ended up here in
- 1:22Speaker 2: a country where so many people don't trust each other anymore,
- 1:25Speaker 2: where we can't agree on what's real or what's fake.
- 1:28Speaker 2: The internet didn't create all these problems, but it's become
- 1:31Speaker 2: a major catalyst for them. Lies travel faster than facts.
- 1:35Speaker 2: Outrage gets rewarded by powerful algorithms that train us with
- 1:38Speaker 2: hits of dopamine. Huge private corporations decide which voices get
- 1:42Speaker 2: amplified and which ones get drowned out. Nearly half of
- 1:46Speaker 2: young people say they wish social media had never been invented.
- 1:50Speaker 2: So if you really want to understand why things feel
- 1:53Speaker 2: so stuck and so out of control at once, it's
- 1:57Speaker 2: helpful to go back to the beginning. to the moment
- 1:59Speaker 2: when the rules were set. Check out this great clip
- 2:02Speaker 2: I came across from the Today Show from 1994, when
- 2:05Speaker 2: the ability to get on the internet from your home
- 2:07Speaker 2: was brand spanking new. It's Katie Couric and Bryant Gumbel.
- 2:10Speaker 2: Gumbel had just read his first email.
- 2:12Speaker 1: Address on air.
- 2:13Speaker 4: That little mark with the A and then the ring
- 2:16Speaker 4: around it. See, that's what I said.
- 2:18Speaker 3: Katie said she thought it was about.
- 2:22Speaker 5: But I'd never heard it said.
- 2:24Speaker 2: I'd always seen the mark, but never heard it said.
- 2:27Speaker 4: And then it sounded stupid when I said it. Violence
- 2:29Speaker 4: at NBC.
- 2:31Speaker 5: Well, what Allison should know.
- 2:33Speaker 3: What is internet anyway?
- 2:35Speaker 6: Internet is that massive computer network. The one that's becoming
- 2:40Speaker 6: really big now.
- 2:42Speaker 4: What do you mean?
- 2:43Speaker 1: What do you write to it, like mail?
- 2:45Speaker 3: Allison, can you explain what internet is?
- 2:48Speaker 2: They have to get one of their producers to explain
- 2:50Speaker 2: it to them from offstage. It all seems so innocent,
- 2:54Speaker 2: even quaint, through the lens of time. I mean, no
- 2:57Speaker 2: one had any idea how the world was about to change.
- 3:00Speaker 2: Twitter wasn't even a glint in Jack Dorsey's eye. Mark
- 3:03Speaker 2: Zuckerberg and Sam Altman were probably playing with Legos.
- 3:06Speaker 1: So was I, to be fair. This was two years later.
- 3:09Speaker 2: Before Congress passed a law that would quietly but definitively
- 3:13Speaker 2: shape the internet, Section 230 of the Communications Decency Act,
- 3:18Speaker 2: the law that made it so websites and platforms and
- 3:20Speaker 2: apps generally are not liable for what other people post
- 3:24Speaker 2: on them. This is the thing I've been banging the
- 3:26Speaker 2: drum on here on the show, revamping Section 230 so
- 3:30Speaker 2: we can hold internet companies accountable for bad behavior. But
- 3:34Speaker 2: there's a conflict I'm in the middle of. On the
- 3:36Speaker 2: one hand, Section 230 makes it really hard to hold
- 3:39Speaker 2: powerful tech companies accountable, even when they amplify lies or
- 3:43Speaker 2: deepfake pornography or other content that really hurts people, even
- 3:47Speaker 2: if it leads to violence. But on the other hand,
- 3:51Speaker 2: the law also helped create a wide open Internet full
- 3:54Speaker 2: of vigorous speech and debate where people can think freely,
- 3:58Speaker 2: argue loudly, criticize what they don't agree with, where important reporting,
- 4:02Speaker 2: the Me Too movement, can really make a mark. I
- 4:06Speaker 2: want to fix the problems, but I don't want an
- 4:08Speaker 2: internet where people are being censored left and right. And
- 4:11Speaker 2: a lot of people say this is why we shouldn't
- 4:13Speaker 2: touch Section 230. It's too risky. But I've held out
- 4:17Speaker 2: hope that there's got to be a way to reform
- 4:19Speaker 2: Section 230 that helps some of the big problems without
- 4:23Speaker 2: blowing up free speech on the internet. And the only
- 4:26Speaker 2: way I know how to figure that out is by
- 4:28Speaker 2: nerding out on the history of how the law came
- 4:30Speaker 2: about in the first place. That's one of the many
- 4:33Speaker 2: Section 230 rabbit holes I've been going down, and I'm
- 4:35Speaker 2: going to bring you down there with me today. What
- 4:38Speaker 2: were the lawmakers who passed Section 230.
- 4:40Speaker 1: Trying to solve? How did they go about it?
- 4:43Speaker 2: Knowing that can help you figure out how you feel
- 4:46Speaker 2: about Section 230, whether we should change it, and if so, how?
- 4:51Speaker 2: This is Question Everything from KCRW and Placement Theory. I'm
- 4:54Speaker 2: Brian Reed. It turns out like many free speech fights
- 4:57Speaker 2: in America, the spawning of Section 230 comes down to sex.
- 5:01Speaker 2: along with a funky legal ruling in Long Island that
- 5:04Speaker 2: involved a shady investment firm and a shady judge.
- 5:07Speaker 3: Stick around.
- 5:19Speaker 2: The page turner of my summer, I'm not being cute,
- 5:21Speaker 2: it really was, was a book about Section 230. The
- 5:25Speaker 2: book about Section 230. There's only one that tells the
- 5:28Speaker 2: whole story of the law. It's by a guy named
- 5:30Speaker 2: Jeff Kossoff, a former journalist and a lawyer who's represented
- 5:34Speaker 2: tech companies, websites, and news outlets. Jeff took it upon
- 5:37Speaker 2: himself a few years back to methodically research this law
- 5:42Speaker 2: that's been so important to our modern age, and then
- 5:44Speaker 2: weave the story for all of us lay folk in
- 5:46Speaker 2: a really compelling way. The book's called The 26 Words
- 5:50Speaker 2: That Created the Internet, and I found it fascinating because
- 5:53Speaker 2: reading it, I felt like Section 230, this invisible force
- 5:57Speaker 2: that shapes our lives and The way we date and
- 6:00Speaker 2: get news and keep in touch with our families and
- 6:02Speaker 2: gossip and sell our old furniture and track 911 calls
- 6:06Speaker 2: in our neighborhoods and hunt for an apartment or for
- 6:09Speaker 2: a job or for sex. I felt like Jeff was
- 6:12Speaker 2: filling it in with colored dye, allowing me to see
- 6:15Speaker 2: it clearly for the first time. So I wanted to
- 6:18Speaker 2: invite him on to tell that story to you. I
- 6:21Speaker 2: think I saw somewhere that you have this party trick
- 6:23Speaker 2: where you can say the 26 words of Section 230
- 6:26Speaker 2: from memory.
- 6:27Speaker 1: Is that right?
- 6:29Speaker 4: No one really asks at parties. I think someone just
- 6:31Speaker 4: said that when they were interviewing me.
- 6:33Speaker 1: Can you do it?
- 6:35Speaker 4: No provider or user of an interactive computer service shall
- 6:37Speaker 4: be treated as the publisher or speaker of any information
- 6:40Speaker 4: provided by another information content provider.
- 6:43Speaker 2: Did you count the 26 words? Okay, well, what's important
- 6:46Speaker 2: is to hang on to this concept. Computer service providers, apps, websites,
- 6:52Speaker 2: social media companies, they can't be treated as publishers or
- 6:56Speaker 2: of the info that other people post on them. So
- 7:00Speaker 2: just keep that in mind. Jeff's a big deal in
- 7:02Speaker 2: the Section 230 world, by the way. And it is
- 7:05Speaker 2: a little niche world. Here he is testifying in Congress
- 7:08Speaker 2: about the law.
- 7:09Speaker 4: My goal is to help expand the public understanding of
- 7:12Speaker 4: Section 230, as Section 230 is responsible, more than any
- 7:16Speaker 4: other law, for the open internet that Americans know, love,
- 7:20Speaker 4: and hate.
- 7:21Speaker 2: He is the guy to talk to about Section 230,
- 7:24Speaker 2: the man people turn to when they want to learn
- 7:26Speaker 2: about this statute. What I learned from Jeff and his
- 7:29Speaker 2: book is that Section 230 arose in large part as
- 7:33Speaker 2: a result of this one court case in 1995. It
- 7:37Speaker 2: was a pretty small case. In retrospect, it could have
- 7:40Speaker 2: been a blip in history. But because of a perfect
- 7:43Speaker 2: storm of things that were going on in Congress, in
- 7:45Speaker 2: this new industry of the internet, and in the courts,
- 7:49Speaker 2: it ended up having a huge impact on the internet
- 7:51Speaker 2: we have today, and by extension on all of us.
- 7:55Speaker 2: Jeff explains this little case in 1995. It was a
- 7:59Speaker 2: defamation suit filed by a company called Stratton Oakmont.
- 8:03Speaker 4: So Stratton Oakmont is an investment firm that was based
- 8:06Speaker 4: in Long Island. It actually is the basis for the
- 8:11Speaker 4: firm that was portrayed in The Wolf of Wall Street. Gentlemen,
- 8:16Speaker 4: welcome back. To Stratton Oakmont. You schnooks will now be
- 8:21Speaker 4: targeting the wealthiest 1% of Americans.
- 8:26Speaker 2: Stratton Oakmont sued an internet company called Prodigy. Maybe some
- 8:30Speaker 2: of you over a certain age remember Prodigy. It was
- 8:33Speaker 2: one of the first companies that let people dial into
- 8:35Speaker 2: the internet from their homes, like AOL. Prodigy had chat
- 8:38Speaker 2: rooms and bulletin boards on different topics. It was created
- 8:42Speaker 2: by IBM and Sears. And they had that kind of
- 8:45Speaker 2: friendly mainstream consumer vibe. They were going for a kind
- 8:48Speaker 2: of wholesome, family-friendly, use the internet to improve your day-to-day
- 8:52Speaker 2: life kind of product. But on this one prodigy bulletin
- 8:55Speaker 2: board about investing.
- 8:57Speaker 4: Someone started posting claims about the president of Stratton Oakmont
- 9:03Speaker 4: claiming that he had engaged in fraudulent conduct.
- 9:07Speaker 2: Which, if you know the movie, the Wolf of Wall
- 9:09Speaker 2: Street guys were ultimately put in prison for financial crimes.
- 9:13Speaker 2: Stratton Oakmont's president said these claims of fraud... on Prodigy's
- 9:16Speaker 2: bulletin board were bullshit. That Prodigy was essentially publishing lies
- 9:21Speaker 2: by providing the message board for this online chatter. And
- 9:25Speaker 2: that Prodigy should.
- 9:26Speaker 4: Pay $ 200 million for defamation.
- 9:29Speaker 2: $ 200 million in 1995.
- 9:32Speaker 4: And so what Prodigy does is they ask the judge,
- 9:35Speaker 4: and this is in a state court on Long Island.
- 9:38Speaker 4: They ask the judge, we want you to declare that
- 9:42Speaker 4: we have the same protection that CompuShip has.
- 9:46Speaker 2: Four years earlier, in 1991, one of Prodigy's competitors, another
- 9:51Speaker 2: dial-up internet provider called CompuServe, had also been sued for
- 9:55Speaker 2: defamation for a statement someone had shared in one of
- 9:57Speaker 2: their forums. CompuServe had argued, we aren't a publisher. We're
- 10:03Speaker 2: just a distributor. We're not like a newspaper.
- 10:06Speaker 1: We're a newsstand.
- 10:07Speaker 2: We can't be responsible for every little thing that our
- 10:10Speaker 2: hundreds of thousands of users post at all hours of
- 10:13Speaker 2: the day on our platform.
- 10:15Speaker 1: That would be impossible.
- 10:16Speaker 2: We don't even know about the supposedly defamatory thing. someone
- 10:20Speaker 2: else said in our forum. CompuServe's argument was convincing to
- 10:24Speaker 2: the court, which decided CompuServe should not be held liable
- 10:28Speaker 2: for the allegedly defamatory statement published on their platform. The
- 10:32Speaker 2: judge dismissed the case. So four years later, when Stratton Oakmont,
- 10:36Speaker 2: Wolf of Wall Street, is suing Prodigy for $ 200 million
- 10:40Speaker 2: in their defamation lawsuit, Prodigy must be thinking we're in.
- 10:43Speaker 1: Pretty solid footing.
- 10:45Speaker 2: They make the case to the judge and that the
- 10:47Speaker 2: suit shouldn't stand because they're just like CompuServe. They're not
- 10:51Speaker 2: a publisher. They were more like a distributor. But Jeff
- 10:54Speaker 2: says it didn't work.
- 10:57Speaker 4: The judge comes back with a ruling that really surprises
- 11:02Speaker 4: a lot of people because the judge declines Prodigy's request
- 11:07Speaker 4: and says, no, I am not going to treat you
- 11:10Speaker 4: as the distributor. I'm going to treat you as the
- 11:13Speaker 4: publisher and And he says, the reason that I'm going
- 11:16Speaker 4: to do this is because unlike CompuServe, you exercise editorial control.
- 11:23Speaker 2: The judge allows the case against Prodigy to move forward.
- 11:26Speaker 2: And his reasoning came down to Prodigy's MO, which was
- 11:29Speaker 2: very different from CompuServe's. CompuServe was a very hands-off, anything-goes
- 11:34Speaker 2: type of place. All sorts of content. If you could
- 11:37Speaker 2: get on the internet, you could pretty much post what
- 11:39Speaker 2: you wanted there. Prodigy, remember, was partly owned by Sears
- 11:43Speaker 2: and was trying to appeal to families. Their ads featured
- 11:46Speaker 2: kids and grandparents. The company didn't want obscene posts on
- 11:49Speaker 2: their platform. And they had moderators who took them down.
- 11:53Speaker 2: Prodigy blocked users if they broke its rules. They curated
- 11:56Speaker 2: their platform and made that part of their brand.
- 11:59Speaker 4: Prodigy wants to be family friendly. I had friends who
- 12:03Speaker 4: would do their homework using Prodigy because Prodigy had online encyclopedias.
- 12:08Speaker 4: And Prodigy was generally the service that parents felt more
- 12:11Speaker 4: comfortable using. letting their kids use. Does anyone out there
- 12:15Speaker 4: understand algebra? And Prodigy marketed that quite a bit. Is
- 12:18Speaker 4: that new.
- 12:19Speaker 7: Seafood chain as good as they say?
- 12:20Speaker 2: Does that new bestseller on investing have any good tips?
- 12:23Speaker 3: Is London a good place for a tenure?
- 12:25Speaker 1: This is one of Prodigy's TV commercials.
- 12:27Speaker 2: If you've got questions and are looking for real answers
- 12:30Speaker 2: and opinions.
- 12:31Speaker 3: How do we tell our child there's another child on
- 12:33Speaker 3: the way?
- 12:35Speaker 7: Then you should connect to Prodigy and share the personal
- 12:38Speaker 7: experiences of over a million and a half people.
- 12:42Speaker 4: Prodigy, the network of active minds.
- 12:47Speaker 2: Prodigy's wholesome brand seemed to influence the Long Island judge,
- 12:51Speaker 2: who said in his ruling, basically, Prodigy, because you moderate
- 12:55Speaker 2: your platform, that's a way to make it family friendly.
- 12:57Speaker 4: Because of that, you are going to be just as
- 13:01Speaker 4: liable as the person who posted it. the content.
- 13:10Speaker 2: Prodigy and Stratton Oakmont ended up settling the case, but
- 13:13Speaker 2: the judge's ruling on this one motion that Prodigy had
- 13:16Speaker 2: filed got some attention because it sent a bit of
- 13:19Speaker 2: a convoluted message. If you're an internet company and you
- 13:23Speaker 2: try to make your platform safer, cleaner, like Prodigy did
- 13:26Speaker 2: by setting standards, hiring moderators, keeping things more kid-friendly, then
- 13:31Speaker 2: we're going to punish you essentially for by making it
- 13:33Speaker 2: easier for people to sue you. But if you don't
- 13:36Speaker 2: go through the trouble and expense to do that stuff,
- 13:38Speaker 2: like comp you serve, you can walk away scot-free. And
- 13:42Speaker 2: here's why the ruling mattered so much. Because it didn't
- 13:45Speaker 2: land in a vacuum. It came down right in the
- 13:48Speaker 2: middle of a moral panic about sex, kids, and the
- 13:51Speaker 2: internet that was engulfing lawmakers in Congress. Here's one particularly
- 13:56Speaker 2: devout senator making his case on the Hill.
- 13:58Speaker 7: Almighty God. Lord of all life, we praise you for
- 14:04Speaker 7: the advancements in computer communications that we enjoy in our time.
- 14:10Speaker 2: This all makes for a perfect storm, because at this
- 14:13Speaker 2: very moment, when the judge ruled against Prodigy, Congress was
- 14:16Speaker 2: locked in a fight over what the rules of the
- 14:18Speaker 2: Internet should be, who should set them, and how those
- 14:21Speaker 2: rules might affect free speech. And this is where we
- 14:24Speaker 2: get to the sex. In his book, Jeff tells the
- 14:28Speaker 2: story of Senator James Exxon, a conservative Democrat from Nebraska
- 14:32Speaker 2: who was shocked by how much porn there was on
- 14:35Speaker 2: the newfangled World Wide Web.
- 14:36Speaker 7: Sadly, however, there are those who are littering this information
- 14:41Speaker 7: superhighway with obscene, indecent, and destructive pornography. Virtually, but virtuous.
- 14:54Speaker 2: Exxon and other senators were worried about kids being able
- 14:57Speaker 2: to access this stuff. So Senator Exxon proposed a bill
- 15:01Speaker 2: that would make it illegal, you could even go to jail,
- 15:03Speaker 2: to post indecent content many places online. It was called
- 15:07Speaker 2: the Communications Decency Act. Jeff says Senator Exxon really threw
- 15:11Speaker 2: himself behind the legislation.
- 15:13Speaker 4: He had what was known as his blue book, which
- 15:16Speaker 4: he carried around in the Senate and showed to other senators.
- 15:20Speaker 4: It was basically a blue binder with printouts of pornography
- 15:25Speaker 4: that he found on the internet to basically show how
- 15:28Speaker 4: concerned he was about this.
- 15:31Speaker 2: Like actual porn printed out in black and white in
- 15:33Speaker 2: a blue book that a senator's like got tucked under
- 15:36Speaker 2: his arm and he's walking around the chamber showing other lawmakers.
- 15:40Speaker 4: Yes.
- 15:41Speaker 7: I have here what I refer to as a blue book.
- 15:45Speaker 7: When I have shown this to members on both sides
- 15:48Speaker 7: of the aisle, there has been shock registered obviously on
- 15:54Speaker 7: the face of my colleagues. I would hope that all
- 15:59Speaker 7: of my colleagues would, if they're interested, come by my
- 16:02Speaker 7: desk and take a look at this disgusting material.
- 16:11Speaker 2: The Blue Book worked. Exxon's proposal passed in the Senate.
- 16:15Speaker 2: In the House, though, Jeff says, it faced a tougher road.
- 16:18Speaker 4: In the House, which is a bit younger than the
- 16:21Speaker 4: Senate and a bit more tech-friendly, you have members of
- 16:25Speaker 4: both parties representing vehemently opposed to this legislation. Newt Gingrich,
- 16:31Speaker 4: who is the new Speaker of the House, he came
- 16:33Speaker 4: out very quickly and said, this is clearly unconstitutional. We
- 16:38Speaker 4: can't prohibit constitutionally protected speech.
- 16:43Speaker 2: Porn for, by, and about adults over 18 might be lewd,
- 16:47Speaker 2: but it's legal speech and protected by the First Amendment.
- 16:50Speaker 2: It's not that representatives in the House weren't concerned about
- 16:54Speaker 2: kids accessing sexual content online. They were, But the House
- 16:58Speaker 2: lawmakers wanted to find a solution that didn't involve the
- 17:01Speaker 2: government censoring people, which is where the Prodigy case comes
- 17:05Speaker 2: back in. One of the best hopes for lawmakers who
- 17:09Speaker 2: were trying to keep smut away from kids on the
- 17:11Speaker 2: Internet while still allowing free speech would be for Internet
- 17:15Speaker 2: companies to step in and moderate their platforms, not because
- 17:19Speaker 2: the government was forcing them to necessarily, but because there
- 17:22Speaker 2: was a market for it, like what Prodigy was doing.
- 17:28Speaker 2: Lawmakers feared that the Prodigy ruling would make it a
- 17:31Speaker 2: lot harder to encourage tech platforms to moderate themselves because
- 17:35Speaker 2: the judge said since Prodigy was moderating its content, they
- 17:38Speaker 2: were essentially approving it and could therefore be held liable
- 17:42Speaker 2: for what people posted.
- 17:44Speaker 1: It was a conundrum.
- 17:45Speaker 2: Republican Congressman Chris Cox was one of the lawmakers leading
- 17:49Speaker 2: the charge to figure this out. In a speech years later,
- 17:52Speaker 2: he remembers the first time he learned about the Prodigy ruling.
- 17:55Speaker 5: Here I was one day, on my regular weekly commute
- 17:59Speaker 5: on a plane flight from California to Washington.
- 18:02Speaker 8: Reading an article in the Wall Street Journal about a
- 18:04Speaker 8: court case in New York that had created a very
- 18:08Speaker 8: dangerous legal precedent.
- 18:10Speaker 2: Cox recalls reading the judge's reasoning in the case alarmed.
- 18:13Speaker 2: Prodigy was wholesome, had banned harassment, bullying, obscene content, and
- 18:18Speaker 2: that's what got it in trouble?
- 18:20Speaker 5: Imagine if that were the law. We can all think
- 18:23Speaker 5: of what the perverse incentives would be in the future.
- 18:27Speaker 5: Online platforms would refuse to moderate even the most awful
- 18:31Speaker 5: content for fear of that liability. It was a prescription
- 18:34Speaker 5: for turning every online platform that's hosting user-created content into
- 18:39Speaker 5: a vulgar and dangerous place.
- 18:42Speaker 2: It was a nightmare scenario for Cox and other representatives.
- 18:46Speaker 2: Because again, at the same time, you had old Blue Book,
- 18:48Speaker 2: Senator James Exxon, gaining traction for his rules about what
- 18:52Speaker 2: people could post on the internet.
- 18:54Speaker 7: I'm not talking just about Playboy and Penthouse magazine. I'm
- 19:01Speaker 7: talking about the most hardcore perverse types of pornography.
- 19:08Speaker 2: So Chris Cox, the Republican from California, teamed up with
- 19:11Speaker 2: one of his colleagues, Representative Ron Wyden, a Democrat from Oregon.
- 19:14Speaker 4: He's now a senator.
- 19:16Speaker 1: Jeff has interviewed them both.
- 19:17Speaker 4: They both came from districts that have a pretty large
- 19:21Speaker 4: tech presence. So Cox is from Orange County and Wyden
- 19:25Speaker 4: is from the Portland area. And they were friends and
- 19:29Speaker 4: they would have lunch together.
- 19:31Speaker 2: Cox and Wyden wanted to prevent rulings like the Prodigy one.
- 19:34Speaker 2: They wanted to encourage companies to be more civic minded
- 19:37Speaker 2: like Prodigy. Jeff also points out, importantly, that there were
- 19:40Speaker 2: economic motives at play, too.
- 19:42Speaker 4: The other goal that Cox and Leitman had was to
- 19:47Speaker 4: promote this new industry to prevent over-regulation of the internet.
- 19:54Speaker 4: And they wanted to not subject these new companies to
- 20:00Speaker 4: endless litigation for the vast amounts of user content that
- 20:05Speaker 4: are posted.
- 20:05Speaker 1: What were they worried would happen?
- 20:08Speaker 4: Well, that the companies would get sued out of existence immediately.
- 20:12Speaker 2: So they wrote out a proposal on a yellow legal pad.
- 20:15Speaker 2: Cox scribbled the first version on one of his flights
- 20:17Speaker 2: from California to D.C. He shared it with Wyden, and
- 20:21Speaker 2: they landed on two key ideas. First, the now famous
- 20:25Speaker 2: 26 words that Jeff memorized.
- 20:27Speaker 4: No provider or user of an interactive computer service shall
- 20:30Speaker 4: be treated as the publisher or speaker of any information
- 20:33Speaker 4: provided by another information content provider. Basically, what that means
- 20:38Speaker 4: is if you're, you know, an app, a website, you're
- 20:42Speaker 4: not treated as the publisher or speaker of any information
- 20:47Speaker 4: provided by another user, by a third party.
- 20:49Speaker 2: Again, you're not treated as the publisher or speaker, so
- 20:52Speaker 2: you can't be held responsible for what other users post.
- 20:55Speaker 2: Like the judge on Long Island said Prodigy could be.
- 20:58Speaker 2: That's the part of Section 230 that I'd say is
- 21:00Speaker 2: most well known. But there's another part of the law,
- 21:03Speaker 2: a lesser known one. That is longer than 26 words,
- 21:05Speaker 2: so I don't think Jeff has memorized it. It says,
- 21:08Speaker 2: as a platform on the internet.
- 21:09Speaker 4: You're also not civilly liable for any good faith efforts
- 21:14Speaker 4: to block access to or restrict any content that you
- 21:19Speaker 4: believe is lewd, lascivious, or otherwise objectionable. So what they're
- 21:25Speaker 4: saying is you're also going to get protection for good
- 21:28Speaker 4: faith decisions that you make as to whether to moderate content.
- 21:34Speaker 4: to block access.
- 21:35Speaker 2: This second provision is super important. So hang on to
- 21:38Speaker 2: it as we keep talking about Section 230. It was
- 21:41Speaker 2: meant to give companies on the internet protection that Prodigy
- 21:44Speaker 2: didn't have to allow companies to decide what they do
- 21:48Speaker 2: or don't want on their platforms. If a website designed
- 21:51Speaker 2: for children doesn't want pornography on it, that's their right.
- 21:55Speaker 2: They can make that call. The explicit goal of the
- 21:58Speaker 2: law is to encourage companies operating online to try and
- 22:01Speaker 2: be good citizens. to make judgments about what will make
- 22:04Speaker 2: for a safer, healthier internet, what will serve their users best,
- 22:08Speaker 2: and to moderate content accordingly. It's actually labeled in the
- 22:12Speaker 2: statute as a good Samaritan protection, though notably there's no
- 22:16Speaker 2: requirement for companies to be a good Samaritan. They get
- 22:19Speaker 2: protection from lawsuits either way. Cox and Wyden's colleagues in
- 22:24Speaker 2: the House get behind their proposal, and Section 230 is
- 22:27Speaker 2: inserted inside the Communications Decency Act, alongside Senator Exxon's rules.
- 22:32Speaker 1: As a sort of compromise.
- 22:34Speaker 2: Compared to the blue book of hardcore porn, Section 230
- 22:37Speaker 2: got very little public attention. It was as though Section
- 22:40Speaker 2: 230 was invisible, Jeff writes in his book. And with
- 22:43Speaker 2: that new version of the Communications Decency Act, on February 8, 1996,
- 22:48Speaker 2: with 81 votes in the Senate, a big majority in
- 22:51Speaker 2: the House, and a signature from President Bill Clinton.
- 22:54Speaker 1: Section 230 passes.
- 23:01Speaker 2: The Communications Decency Act had a very short life. The
- 23:05Speaker 2: same day it was signed into law, the ACLU sued
- 23:09Speaker 2: the government, saying that Senator Exxon's rules about online porn
- 23:13Speaker 2: were unconstitutional. The ACLU won. And in 1997, the Communications
- 23:19Speaker 2: Decency Act was struck down. Except for Section 230. That
- 23:24Speaker 2: part remained. Left there like a single ionic pillar, standing
- 23:29Speaker 2: strong amidst the ruins. still standing strong today. So if
- 23:38Speaker 2: you're trying to sort out where you're at on Section 230,
- 23:41Speaker 2: or even if you think you know where you're at
- 23:43Speaker 2: on it, check out this little coda. It's one of
- 23:46Speaker 2: the most surprising things I learned from Jeff's book, and
- 23:48Speaker 2: I don't think it's widely appreciated, even by people who
- 23:51Speaker 2: know this story. In most retellings of Section 230's origin,
- 23:55Speaker 2: the ruling against Prodigy is described as a moment of alarm,
- 23:58Speaker 2: even panic. the kind of decision lawmakers believe they needed
- 24:02Speaker 2: to respond to urgently. That's how one of the law's authors,
- 24:05Speaker 2: Congressman Chris Cox, described that moment in a speech years later.
- 24:09Speaker 8: Here I was reading an article in the Wall Street
- 24:12Speaker 8: Journal about a court case in New York that had
- 24:15Speaker 8: created a very dangerous legal precedent.
- 24:18Speaker 2: But Jeff points out something crucial. The prodigy ruling was
- 24:21Speaker 2: not a binding legal precedent. It was a ruling on
- 24:24Speaker 2: a single motion in a low-level New York state court,
- 24:28Speaker 2: not even a state appellate court. not a federal court.
- 24:31Speaker 2: No one besides the parties in that one New York
- 24:34Speaker 2: courtroom had to abide by this judge's ruling.
- 24:37Speaker 4: This is one state court judge on Long Island who
- 24:41Speaker 4: had a bit of a spotty record, this judge. So, um, yeah,
- 24:45Speaker 4: tell me about that.
- 24:46Speaker 2: I actually was one of, I found that to be
- 24:47Speaker 2: a surprising and memorable part of your book.
- 24:50Speaker 1: What's his name? His name is judge Stewart Ane. Is
- 24:52Speaker 1: that right? Justice.
- 24:53Speaker 4: Yeah. Justice Stewart Ane. So is he alive still? Um,
- 24:57Speaker 4: I do not believe so.
- 24:58Speaker 1: No.
- 24:59Speaker 4: Um, So he faced disciplinary action for asking about the
- 25:05Speaker 4: ethnicity of a lawyer who appeared before him. And he
- 25:12Speaker 4: made some offhanded comments that weren't really relevant.
- 25:16Speaker 1: I mean, didn't he give the guy the finger?
- 25:18Speaker 3: Yes.
- 25:19Speaker 1: He was an Arab lawyer.
- 25:20Speaker 3: Yeah.
- 25:21Speaker 2: I got this from your book. He asked him his
- 25:25Speaker 2: ethnicity when the guy said he was Arab. The judge
- 25:28Speaker 2: said from the bench, you're our sworn enemies. And then
- 25:33Speaker 2: ultimately gave him a middle finger from the bench and said,
- 25:35Speaker 2: what the fuck do you people want anyway? Is what
- 25:38Speaker 2: I'm getting you quote in your book.
- 25:40Speaker 3: Yes. Okay.
- 25:42Speaker 2: And then he continued to serve on the bench after that.
- 25:45Speaker 4: He wasn't one of the most distinguished judges out there.
- 25:50Speaker 2: As I've dug into section 230, I find it helpful
- 25:53Speaker 2: to pause here for a moment. This was one clearly
- 25:57Speaker 2: flawed judge. making one ruling based on one set of
- 26:00Speaker 2: circumstances at one point in time in a very new industry,
- 26:05Speaker 2: in a low-level state court where decisions aren't binding on
- 26:08Speaker 2: anyone else in the country.
- 26:10Speaker 7: And yet.
- 26:12Speaker 4: His ruling was one of the main motivators for Congress
- 26:16Speaker 4: to design Section 230. If Justice Ayn had ruled differently,
- 26:23Speaker 4: we might not have even had Section 230 before.
- 26:28Speaker 2: There are other ways this story could have gone. If
- 26:31Speaker 2: Congress hadn't responded to the prodigy ruling by giving platforms
- 26:34Speaker 2: sweeping immunity, it's possible more cases could have been brought,
- 26:39Speaker 2: worked their way through the courts with more judges weighing in,
- 26:42Speaker 2: more appeals, and a more nuanced legal framework could have
- 26:46Speaker 2: developed for the Internet. Or Congress might have come up
- 26:49Speaker 2: with a different solution. Maybe granting sites partial protection from
- 26:53Speaker 2: lawsuits or requiring them to take certain actions, like making
- 26:56Speaker 2: a good faith effort to moderate harmful content, actually be
- 27:00Speaker 2: good Samaritans in order to get Section 230 protection. But
- 27:04Speaker 2: this is the way the story did go. And it
- 27:06Speaker 2: landed us here with the Internet we have today, where lies,
- 27:10Speaker 2: deep fakes, scams are running rampant, fueled by tech companies
- 27:15Speaker 2: who know we can't really sue them. After a quick break,
- 27:23Speaker 2: we return to the present, where there's a real divide
- 27:26Speaker 2: over Section 230, and where Jeff Kossoff has some.
- 27:29Speaker 1: Concerns about my reporting.
- 27:44Speaker 2: Welcome back. We just heard the story of how and
- 27:46Speaker 2: why Section 230 was created. But that was then.
- 27:51Speaker 1: This is now.
- 27:52Speaker 2: And the Internet of the 90s, made up of message
- 27:55Speaker 2: boards and forums, was a very different place than the
- 27:58Speaker 2: Internet of today. Companies have often strayed from the Good
- 28:02Speaker 2: Samaritan intent of Section 230. Prodigy's out of business. Big
- 28:07Speaker 2: tech is in charge and nearly untouchable. They've developed algorithms
- 28:10Speaker 2: that feed us rage-inducing content and AI that creates deep fakes,
- 28:14Speaker 2: content that keeps us addicted and afraid, misinformed and polarized.
- 28:19Speaker 2: It seems right to revisit this special immunity that companies
- 28:22Speaker 2: like this get from Section 230. But you know who
- 28:25Speaker 2: staunchly disagrees with me?
- 28:27Speaker 1: Jeff Kasif.
- 28:29Speaker 2: Jeff, the man who wrote the book on Section 230,
- 28:32Speaker 2: as educated in the history of it as they come.
- 28:35Speaker 1: He is for the law.
- 28:37Speaker 2: As Jeff and I were emailing to set up our interview,
- 28:39Speaker 2: he told me that he'd listened to some of the
- 28:41Speaker 2: reporting I'd done so far. Specifically, the episode called I
- 28:44Speaker 2: Believed in Sandy Hook. where I started laying out my
- 28:47Speaker 2: case for rolling back Section 230. I'd love the opportunity
- 28:51Speaker 2: to present some counter arguments and attempt to change your mind,
- 28:54Speaker 2: he wrote. I share many of your concerns about the
- 28:57Speaker 2: modern internet, but I worry that repealing 230 would make
- 29:00Speaker 2: those problems worse. So once we were sitting down together,
- 29:04Speaker 2: I asked him, do you feel like there's anything I
- 29:07Speaker 2: misrepresented or misunderstood that's crucial in what I've reported so far?
- 29:12Speaker 2: I mean, this is an ongoing project and I plan
- 29:14Speaker 2: to share lots more reporting on it with listeners, but
- 29:17Speaker 2: in that episode, were you like, oh man, Brian just
- 29:19Speaker 2: totally screwed this up?
- 29:22Speaker 4: Well, I think that positioning Section 230 as the special
- 29:27Speaker 4: privilege just for internet companies is not a fair characterization
- 29:33Speaker 4: of Section 230 because any company or individual who has
- 29:39Speaker 4: a website or a blog or an app receives 230 protection.
- 29:44Speaker 4: But then also the people who post on those services
- 29:48Speaker 4: also benefit from Section 230 tremendously because they would not
- 29:54Speaker 4: have nearly as many avenues for their speech if it
- 29:58Speaker 4: wasn't for Section 230.
- 30:00Speaker 1: It's not just big tech, basically. It's not just a
- 30:02Speaker 1: protection for big tech.
- 30:03Speaker 4: It's not.
- 30:05Speaker 2: I've definitely emphasized the protection Section 230 gives to big
- 30:08Speaker 2: tech companies. Those are the places I'm hyper-focused on. But
- 30:12Speaker 2: Jeff's right that Section 230 protects other organizations and people
- 30:16Speaker 2: on the Internet, too. It protects small news sites that
- 30:19Speaker 2: have comment sections from being liable for what readers post there.
- 30:23Speaker 2: It protects message boards in neighborhoods or small towns.
- 30:26Speaker 1: It protects Wikipedia.
- 30:28Speaker 2: And it also protects regular social media users who reshare
- 30:32Speaker 2: other people's posts from being liable for what's in those.
- 30:35Speaker 2: Jeff feels it's important to point this out because it's
- 30:38Speaker 2: those sometimes tiny, vulnerable, not-so-well-resourced outlets and individuals that he
- 30:44Speaker 2: worries would get crushed by the threat of litigation if
- 30:47Speaker 2: Section 230 protections went away. Really paint the picture for me. Like,
- 30:51Speaker 2: we repeal Section 230. What are the kind of most
- 30:55Speaker 2: serious blows? Like, what's the hellscape? that emerges in a
- 30:59Speaker 2: post 230 world, in your view?
- 31:01Speaker 4: I think the biggest problem is that you see fewer
- 31:05Speaker 4: avenues for user content. And they're only among these gigantic
- 31:10Speaker 4: tech platforms, which is already a problem. But it becomes
- 31:14Speaker 4: even more of a problem. There's not these other smaller
- 31:19Speaker 4: niche sites, because as a lawyer who's represented small news organizations,
- 31:25Speaker 4: I can tell you that There are a lot of
- 31:27Speaker 4: platforms that without Section 230 would just get rid of
- 31:30Speaker 4: their comment section. This idea that it's for internet companies
- 31:35Speaker 4: is just not correct. I'll give an example of Glassdoor.
- 31:40Speaker 4: So Glassdoor is a website where people can rate and
- 31:45Speaker 4: review both their employers and companies that they've applied to
- 31:49Speaker 4: for jobs. Glassdoor has very thoughtful moderation policies. They have
- 31:56Speaker 4: certain things that they, I mean, if there's a threat
- 32:00Speaker 4: or personal information or things like that, they'll remove that.
- 32:04Speaker 4: They're able to do that because of Section 230.
- 32:07Speaker 2: Because without Section 230, Jeff says, a company that has
- 32:10Speaker 2: scathing reviews from anonymous employees about its work environment could
- 32:14Speaker 2: send an angry letter to Glassdoor, claim the reviews are lies,
- 32:17Speaker 2: they're defamatory. And Glassdoor would probably remove the reviews to
- 32:21Speaker 2: avoid litigation with the angry company. essentially preventing people from
- 32:24Speaker 2: putting honest feedback on their site. Every company on Glassdoor
- 32:28Speaker 2: can make that kind of stink. Glassdoor could be overwhelmed
- 32:31Speaker 2: by legal threats. They might take posts down en masse,
- 32:34Speaker 2: or they might just not be able to exist in
- 32:36Speaker 2: the first place. Spaces like Glassdoor, where people can speak
- 32:39Speaker 2: freely on the internet, could disappear.
- 32:42Speaker 4: You can extend that to Yelp. So Yelp has the
- 32:46Speaker 4: same sort of policies as Glassdoor. You're suddenly going to
- 32:49Speaker 4: have restaurants with all five-star reviews.
- 32:52Speaker 2: So an internet without Section 230, we might have to
- 32:55Speaker 2: accept a world without sites like Glassdoor or Yelp.
- 33:01Speaker 4: Yeah, I think so. Or it would be sites very
- 33:05Speaker 4: different from Glassdoor or Yelp.
- 33:08Speaker 2: I guess my feeling is, like, if I had to
- 33:10Speaker 2: imagine an internet that didn't have Glassdoor or Yelp, which
- 33:14Speaker 2: I think provide value.
- 33:15Speaker 1: You know, I've used them. But there is.
- 33:20Speaker 2: A level of accountability and mechanisms for accountability against these
- 33:25Speaker 2: very influential platforms that really affect day-to-day life and our democracy.
- 33:31Speaker 2: That might be a trade-off I'm willing to make. But
- 33:34Speaker 2: what else am I not appreciating?
- 33:36Speaker 4: Well, I think you're not appreciating the First Amendment very much.
- 33:40Speaker 3: Oh, okay.
- 33:40Speaker 4: Without Section 230, you're not going to have that former
- 33:45Speaker 4: employee or the customer who is ripped off by a
- 33:48Speaker 4: car mechanic. They're not going to have an outlet to
- 33:51Speaker 4: go speak to. It protects the speakers. I mean, the
- 33:54Speaker 4: people who want to have an outlet.
- 33:57Speaker 2: In his book, Jeff writes, I did not come to
- 34:01Speaker 2: this project as an unbiased observer. I'm a former journalist
- 34:05Speaker 2: and lawyer for newspapers and websites, and I have an
- 34:08Speaker 2: unabashed enthusiasm for free speech. Section 230's broad immunity has
- 34:13Speaker 2: been a net benefit to American society. But I can
- 34:16Speaker 2: understand why someone could reach the exact opposite determination because
- 34:20Speaker 2: of the real problems that have arisen as a result
- 34:22Speaker 2: of irresponsible online platforms. This book is a biography, not
- 34:27Speaker 2: a love story, not a tribute, and hopefully not an obituary.
- 34:33Speaker 2: Jeff wrote that in 2019. By that point, critics and
- 34:37Speaker 2: lawmakers had started to take aim at Section 230, blaming
- 34:41Speaker 2: it for lots of the problems that have escalated on
- 34:44Speaker 2: the Internet. Hence his worry that he might be writing
- 34:46Speaker 2: an obituary. And obviously with senators railing against Section 230
- 34:50Speaker 2: again at a hearing just last week, saying it has
- 34:53Speaker 2: to go if we want to keep children safe online.
- 34:56Speaker 2: It's a fear of Jeff's that I imagine has not
- 34:58Speaker 2: gone away. Here's Democrat Amy Klobuchar last week.
- 35:01Speaker 6: It's long past time to repeal Section 230. I had thought, well, no,
- 35:06Speaker 6: maybe we can put in these rules in place and
- 35:08Speaker 6: the tech companies will work with us. And that just
- 35:11Speaker 6: hasn't happened. The opposite has happened. And as we approach
- 35:15Speaker 6: this 30-year anniversary, maybe it's time to do a major assessment,
- 35:19Speaker 6: which takes for any parent about one minute, to realize
- 35:23Speaker 6: the harm that has been caused by all of this.
- 35:26Speaker 2: I also believe that Section 230 warrants a major reassessment.
- 35:30Speaker 2: But especially after learning the history of the law from Jeff,
- 35:33Speaker 2: I'll cop to some jitters when I hear senators stridently
- 35:37Speaker 2: demanding full repeal of Section 230 without also talking about
- 35:41Speaker 2: how they're going to protect speech. To Jeff's point, there's
- 35:44Speaker 2: a scenario where in an effort to hold big tech
- 35:47Speaker 2: platforms accountable, people's ability to speak on the internet could
- 35:51Speaker 2: get stamped out too. Jeff's right to keep me focused
- 35:54Speaker 2: on that. I still believe it's possible to balance both.
- 35:58Speaker 2: There are thoughtful proposals out there for how to reform
- 36:01Speaker 2: rather than repeal 230, which is where my head's currently at.
- 36:05Speaker 2: We'll dig into some of those in the new year.
- 36:11Speaker 2: I'm really curious what you all think of this. Come
- 36:13Speaker 2: chat about it with me on Substack. Questioneverything.substack.com. You can
- 36:18Speaker 2: send me a message there, or we have an open
- 36:20Speaker 2: free chat room where everybody can weigh in, and Substack
- 36:23Speaker 2: is not liable for what you say. Also, you can
- 36:25Speaker 2: DM me on Instagram at brihreed. That's B-R-I-H-R-E-E-D. See, I
- 36:32Speaker 2: am not a Luddite.
- 36:33Speaker 1: I don't think these platforms should go away necessarily. I
- 36:36Speaker 1: use them.
- 36:38Speaker 2: I just think there should be more ways to hold
- 36:39Speaker 2: them accountable to make them better than they currently are.
- 36:43Speaker 2: Jeff Kossoff's book is called The 26 Words That Created
- 36:46Speaker 2: the Internet.
- 36:47Speaker 1: Check it out.
- 36:48Speaker 2: Today's episode was produced by Sam Egan. It was edited
- 36:50Speaker 2: by our managing editor, Kevin Sullivan. Robin Semyon and I
- 36:53Speaker 2: are the executive producers of Question Everything. Our team also
- 36:56Speaker 2: includes producers Sophie Kazis.
- 36:58Speaker 1: And Zach St.
- 36:58Speaker 2: Louis, contributing editors Neil Drumming and Jen Kinney, and associate
- 37:02Speaker 2: producers Kevin Shepard and Emma Grillo. This episode was fact-checked
- 37:05Speaker 2: by Annika Robbins, mixing and sound design by Sharif Youssef.
- 37:09Speaker 2: Our music is by Matt McGinley. Our KCRW partners include
- 37:12Speaker 2: Arnie Seipel, Tejal Ajmera, Natalie Hill, and Jennifer Farrow.
- 37:17Speaker 1: We'll see you soon.