Section 230: Big Tech’s Legal Shield and the Ultimate Threat to Democracy Open Access

McCarthy, Julian (Spring 2021)

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This thesis seeks to analyze Section 230 and its impact on the structure of the Internet and Web 2.0, the business models of today's information service providers (ISPs), and the current misinformation crisis. Subsection (c)1 of Section 230 states, "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." Jeff Kosseff has called Subsection (c)1 "The Twenty-Six Words That Created The Internet" because it prevents ISPs from being held liable for any harmful third-party content on their platforms and, subsequently, turn a blind eye to it. As a result, the information ecosystem has been poisoned by misinformation, disinformation, malinformation, and conspiracy theories. These fraudulent information variants have corrupted public opinion, undermined democracy, and relegated consumers to a hyperreality, where they are unable to discern fact from fiction.

I argue there has been a significant discrepancy between Section 230's intent versus its application. Subsection (c)2 of Section 230, also known as the "Good Samaritan" provisions, showcases that one of the law's primary goals was to give ISPs immunity for the third-party content on their platforms to encourage them to develop purposeful regulatory procedures for user-generated content. Instead, many ISPs have utilized Section 230's immunity for third-party content without enacting these procedures because of a profit-maximizing ideology. This work builds on the existing Section 230 scholarly literature by highlighting this discrepancy, analyzing Justice Clarence Thomas's recently released opinion about Section 230's wrongful application in Zeran, and explaining how Section 230 has influenced the structure of the digital sphere and contributed to the rise of dishonest content online.

Table of Contents

Introduction                                                                                                                                      1

Chapter 1: The History of Section 230                                                                                             4

Chapter 2: Section 230 and The Development of ISP’s Business Models                                     26

Chapter 3: The Proliferation of Misinformation, Disinformation, and Conspiracy Theories Online            45

Conclusion: The Future of Section 230                                                                                          63

Bibliography                                                                                                                                  68

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