It's Not Section 230 of the Communications Decency Act

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An open letter to the Electronic Frontier Foundation. Links have been wikified.

To Whom It May Concern:
Thank you for all the good work you have done in supporting Internet freedom and opposing legislation that would abridge or violate it. I also greatly appreciate your simple statement of why Section 230 of Title 47 of the US Code is a good law and should not be repealed. However, I do have an issue with your reference to it as section 230 of the Communications Decency Act, for two reasons: it is factually incorrect and it is misleading.

Calling it section 230 of the Communications Decency Act is factually incorrect. The Communications Decency Act was not its own law, but was Title V of the Telecommunications Act of 1996, and so in a strict sense does not have its own section numbers. In fact, the section number 230 comes from an insertion made by section 509 of the Telecommunications Act into the Communications Act of 1934; it was also assigned the number 230 when it was codified into Title 47 of the US Code.

It is also misleading to refer to it as part of the Communications Decency Act; it is not and was never intended to be. For example, during the debate on it in the House of Representatives, Representative Barton said "I think it is a much better approach than the approach that has been taken in the Senate by the Exon amendment [the Communications Decency Act]." Representative Lofgren said "Senator Exon's approach is not the right way." Representative Markey said "It is a significant improvement over the approach of the Senator from Nebraska, Senator Exon." This sentiment was echoed in the Senate. Senator Feingold said "Mr. President, I urge the conference committee to reject the Exon-Coats and Hyde provisions during its deliberations and to maintain the Cox-Wyden amendment adopted overwhelmingly by the House of Representatives." (The Hyde amendment, not to be confused with the anti-abortion one, was passed by the House along with the Cox-Wyden amendment, or what would become section 230, though, it must be noted, without the unanimity that marked the passage of the latter.) To refer to it as part of the CDA creates the impression that it was somehow complementary to the punitive and restrictive scheme imposed by the CDA, when it was an attempt to replace the CDA altogether. This is a line of attack that has been pursued by many opponents to 230: they hold that since the CDA was (rightly) struck down by the Supreme Court in 1997, section 230 should have gone with it and, as it stands, is only one piece of the puzzle. In fact, before I looked into the legislative history, that was the opinion I held.

There are many more alternative ways to refer to section 230. Just plain "Section 230" would suffice for most cases, since it is apparent to both its proponents and opponents which section 230 you are talking about. Another name could be "Internet Freedom and Family Empowerment Act", which was, after all, the name under which section 230 was originally introduced, which shortens quite naturally to the very memorable "Internet Freedom Act". It could also be referred to as the "Cox-Wyden Amendment", to honor the names of those that introduced it, although I can see why this may not be desirable given the latter is still serving in the Senate.

It is tempting to respond "What's in a name? That which we call a rose by any other name would smell as sweet." But certainly we don't want Capulets thinking their best friend is a Montague when he is demonstrably not. Stating that Section 230 is not part of the Communications Decency Act will create a true impression of it and bolster your cause to keep it sacred through the years to come.

Best wishes,
Quintuplicate Confederation