Ellysse and Ashley Break the Internet

What exactly is Section 230 of the Communications Decency Act, and why is a 1996 law so important today? Why have Presidents Biden and Trump both said they want to repeal it? Was it to blame when Twitter and Facebook banned Trump from their platforms, or was it the reason they didn’t ban him sooner?Join policy analysts from the world’s leading tech policy think tank as they break down one of the most contentious debates about free speech, intermediary liability, and the future of the Internet. Ellysse and Ashley Break the Internet takes a deep dive into the ins and outs of Section 230, providing fresh insights and new perspectives with leading policy experts, advisers, and advocates from across the political spectrum.This 12-episode series asks what will happen if policymakers keep or repeal the law credited with creating the Internet and explores the opportunities for Congress to make the law even better. The first two episodes will drop on Wednesday, February 24. New episodes will follow in pairs every week.

Cathy Gellis, veteran Internet professional-turned-lawyer working in the intersection of technology and civil liberties, joins Ellysse and Ashley to explain what Section 230 is, what it does, why it has attracted so much attention and controversy, and what the key players in the debate are saying.Mentioned:Cathy Gellis, “If We’re Going To Talk About Discrimination In Online Ads, We Need To Talk About Roommates.com,” Techdirt, February 19, 2021.Cathy Gellis, “How To Think About Online Ads And Section 230,” Techdirt, February 10, 2021.Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc).Cathy Gellis, “Section 230 Isn’t A Subsidy; It’s A Rule Of Civil Procedure,” Techdirt, December 29, 2020.RelatedAshley Johnson and Daniel Castro, “Overview of Section 230: What It Is, Why It Was Created, and What It Has Achieved” (ITIF, February 2021).

Patrick Carome, one of the leading advocates in Section 230 litigation famous for representing AOL in the landmark Section 230 case, Zeran v. AOL, joins Ellysse and Ashley to explore the history behind Section 230, Congress' intentions in passing it, and the foundational case that set the precedent for how courts interpret it.Mentioned:Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997).Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. May 24, 1995).Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).Related:Ashley Johnson and Daniel Castro, “The Exceptions to Section 230: How Have Courts Interpreted Section 230?” (ITIF, February 2021).

Klon Kitchen, a tech policy expert at the American Enterprise Institute who authored the Heritage Foundation’s Section 230 reform proposal, joins Ellysse and Ashley to unpack the political debate surrounding Section 230 and the treatment of political speech online.MentionedKlon Kitchen, “Section 230—Mend It, Don’t End It” (Heritage Foundation, October 2020).RelatedAshley Johnson and Daniel Castro, “Proposals to Reform Section 230” (ITIF, February 2021).

Aaron Mackey, staff attorney and free speech expert at the Electronic Frontier Foundation, joins Ellysse and Ashley to evaluate recent proposals to amend or repeal Section 230 based on their potential impact and effectiveness. Mentioned “S.3398 - EARN IT Act of 2020,” Congress.gov. “S.4534 - Online Freedom and Viewpoint Diversity Act,” Congress.gov. “S.4632 - Online Content Policy Modernization Act,” Congress.gov. “S.4066 - PACT Act,” Congress.gov. Related Ashley Johnson and Daniel Castro, “Proposals to Reform Section 230” (ITIF, February 2021). Sophia Cope, Aaron Mackey, and Andrew Crocker, “The EARN IT Act Violates the Constitution,” EFF, March 31, 2020. Aaron Mackey, “The PACT Act’s Attempt to Help Internet Users Hold Platforms Accountable Will End Up Hurting Online Speakers,” EFF, July 21, 2020. Sophia Cope and Aaron Mackey, “The PACT Act Is Not The Solution To The Problem Of Harmful Online Content,” EFF, July 30, 2020. 

Daphne Keller, platform regulation expert at Stanford University and former Associate General Counsel for Google, joins Ellysse and Ashley to explain Section 230’s role in shaping how large companies approach content moderation on a massive scale, and how intermediary liability protections allow platforms of all sizes to thrive.MentionedJennifer M. Urban, Joe Karaganis, and Brianna L. Shofield, Notice and Takedown in Everyday Practice(Berkeley Law, 2016).Maarten Sap et al., “The Risk of Racial Bias in Hate Speech Detection,” Proceedings of the 57th Annual Meeting of the Association for Computational Linguistics (2019): 1668-78.Thomas Davidson, Debasmita Bhattacharya, and Ingmar Weber, “Racial Bias in Hate Speech and Abusive Language Detection Datasets,” Proceedings of the Third Workshop on Abusive Language Online (2019): 25-35.“H.R.1865 - Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” Congress.gov.Woodhull Freedom Foundation v. United States, No. 18-5298 (D.C. Cir. 2020).Daphne Keller, “SESTA and the Teachings of Intermediary Liability” (The Center for Internet and Society, November 2017).Daphne Keller, “For platform regulation Congress should use a European cheat sheet,” The Hill, January 15, 2021.Renee Diresta, “Free Speech Is Not the Same As Free Reach,” Wired, August 30, 2018.

Jessica Ashooh, Director of Policy at Reddit, joins Ellysse and Ashley to explore the impact of Section 230 on small to mid-sized companies and explain its importance for innovation and competition in the Internet economy.Mentioned “H.R.1865 - Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” Congress.gov.RelatedEmily Birnbaum, “Reddit worries it’s going to be crushed in the fight against Big Tech,” Protocol, October 28, 2020.

David Chavern, CEO of a news industry trade association representing nearly 2,000 publishers, joins Ellysse and Ashley to discuss the impact of Section 230 on traditional media and the spread of misinformation, as well as how the news industry handles the issue of intermediary liability.MentionedDavid Chavern, “The News Media and Section 230,” News Media Alliance, February 19, 2020.David Chavern, “Section 230 Is a Government License to Build Rage Machines,” Wired, September 14, 2020.Sacha Baron Cohen, “Sacha Baron Cohen’s Keynote Address at ADL’s 2019 Never Is Now Summit on Anti-Semitism and Hate,” ADL, November 21, 2019. “H.R.8636 - Protecting Americans from Dangerous Algorithms Act,” Congress.gov.Roger McNamee, “Facebook Cannot Fix Itself. But Trump’s Effort to Reform Section 230 Is Wrong,” TIME, June 4, 2020.Related Ashley Johnson and Daniel Castro, “Fact-Checking the Critiques of Section 230: What Are the Real Problems?” (ITIF, February 2021).

David Kaye, free speech expert at the University of California, Irvine, joins Ellysse and Ashley to explore the challenges of developing effective and culturally relevant content moderation policies in different countries and how intermediary liability laws like Section 230 impact online speech for billions of users around the world.MentionedDavid Kaye, Speech Police: The Global Struggle to Govern the Internet(New York: Columbia Global Reports, 2019).Jack Goldsmith and John Wu, Who Controls the Internet?: Illusions of a Borderless World (New York: Oxford University Press, 2006). “Regulation of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC,” EUR-Lex.RelatedAshley Johnson and Daniel Castro, “How Other Countries Have Dealt With Intermediary Liability” (ITIF, February 2021).

Elisa D’Amico, co-founder of the Cyber Civil Rights Legal Project—which provides pro bono legal assistance to victims of nonconsensual pornography—joins Ellysse and Ashley to explain the unique challenges the Internet poses for combatting online abuse, the struggles victims face seeking justice, and the role online platforms play in moderating abusive content.Mentioned“Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act of 2021,” Office of Congresswoman Jackie Speier.RelatedNiraj Chokshi, “How to Fight Back Against Revenge Porn,” The New York Times, May 18, 2017.Matthew Goldstein, “Law Firm Founds Project to Fight ‘Revenge Porn,’” The New York Times, January 29, 2015. Pari Berk, “Elisa D’Amico ’06: Fighting to Protect Sexual Privacy Online, in a Share-and-Share-Alike Culture,” Fordham Law News, June 18, 2019.Elisa D’Amico and Luke Steinberger, “Fighting for Online Privacy with Digital Weaponry: Combating Revenge Pornography,” Entertainment, Arts and Sports Law Journal 26, no. 2 (2015): 24-36.Elisa D’Amico, “The War to Stay Secure: Online Privacy and the Battle in the Civil Courts against Sexual Cyberharassment,” Human Rights 41, no. 3 (2016): 5-8.

Jennifer Huddleston, tech policy expert at the American Action Forum, joins Ellysse and Ashley to highlight the benefits of Section 230 for free speech, competition, and innovation and explore the potential implications of new regulations for civil liberties.MentionedBrent Skorup and Jennifer Huddleston, “The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online Curation,” Oklahoma Law Review 72, no. 3 (2020).Billy Easley, “Revising the Law That Lets Platforms Moderate Content Will Silence Marginalized Voices,” Slate, October 29, 2020.“H.R.1865 - Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” Congress.gov.

Andrew Bolson, privacy lawyer advocating for Section 230 reform, joins Ellysse and Ashley to evaluate the need for Section 230 reform in order to protect consumers and limit online abuse, suggest what form that should take, and explain the risks of taking a subjective approach to reforming online intermediary liability.MentionedAndrew P. Bolson, “Flawed But Fixable: Section 230 of the Communications Decency Act at 20,” Rutgers Computer & Technology Law Journal 42 (2016).Andrew P. Bolson, “Moderate the Hate: A Scoring System to Grade the Content Moderation Policies & Safety Procedures of Websites” (2020).RelatedAshley Johnson and Daniel Castro, “Proposals to Reform Section 230” (ITIF, February 2021).

Neil Chilson, tech policy expert at the Charles Koch Institute and former FTC chief technologist, joins Ellysse and Ashley to forecast where the debate surrounding Section 230 is heading and present a vision for the future of content and online speech regulation.MentionedNeil Chilson, “Statement of Neil Chilson: Section 230 – Nurturing Innovation or Fostering Unaccountability?”, Department of Justice, February 19, 2020.Neil Chilson, “Why Joe Biden and Donald Trump are both wrong about Section 230,” Protocol, November 13, 2020.