How Trump’s fury at Silicon Valley fixated on the little-known Section 230

President Donald Trump’s yearslong crusade against social media titans like Facebook and Twitter has turned into a concentrated attack on one previously obscure technology statute from the mid-1990s — a fixation that’s only escalating in the twilight of his presidency.

Trump’s latest gambit raised the stakes further, threatening to veto a must-pass defense spending bill if it didn’t immediately revoke the 1996 law known as Section 230, which offers legal immunity to a wide range of online companies. But his Tuesday night tweet was just the culmination of a series of efforts by the president to weaken protections for the tech platforms that fact-checked, filtered or blocked some of his messages during the months before his defeat at the polls.

In the run-up to Election Day, the White House pressed Republican Senate leaders to hold hearings on the statute and tasked at least three independent agencies with exploring ways to reinterpret or weaken it. Trump has also pressured his political appointees at those agencies to aid his efforts, and rescinded his renomination of a Republican on the Federal Communications Commission who had expressed skepticism about the push. That’s on top of making “Section 230” a repeated refrain at his rallies, often without explaining what the term means.

White House press secretary Kayleigh McEnany told reporters Wednesday that the president is serious about addressing the statute. And a former Trump aide who remains close to the White House said he’s insisting on it now so he can claim some victory in the last days of his presidency. “This would be a huge win on something important to the base,” the aide said.

This latest attempt is falling flat, though — top lawmakers of both parties said Wednesday that they have no intention of bowing to his last-minute demands to shoehorn the tech rollback into the defense bill.

Trump even drew criticism from some of Section 230’s biggest critics on Capitol Hill, as well as activists who say the legal shield protects too broad a range of illegal or harmful activity.

“It’s frankly really embarrassing that Trump places his personal vendetta against Twitter above the safety and security of the United States of America,” said Rep. Jan Schakowsky (D-Ill.), who has called for updating Section 230. “He should be ashamed of himself.”

Gretchen Peters, executive director of the advocacy group the Alliance to Counter Crime Online, said Trump’s actions could set back bipartisan efforts to amend the law.

“There’s a lot of us who’ve been working on getting Section 230 reformed for years, and slamming something through in the end-of-the-year defense bill is going to undo a lot of the work that’s been done already,” Peters said.

The liability law that ‘created the internet’

Section 230, which Congress passed as part of the now largely defunct Communications Decency Act, shields companies, nonprofits and other operators of online platforms in two crucial ways: It protects them from suits over content their users post, specifying that the sites are not considered “publishers” covered by laws on topics like libel. And it grants the platforms immunity when they remove, block or otherwise moderate material they consider “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

That protection has been crucial to the growth of tech companies large and small, allowing them to host people’s photos, videos, restaurant reviews, political screeds and neighborhood gossip without fear of landing in court. Section 230 is considered so foundational to the success of the online industry that one book published last year calls it “The Twenty-Six Words that Created the Internet.”

But the law has attracted mounting criticism in recent years from policymakers in both the U.S. and Europe, who say it offers gigantic companies such as Google and Facebook carte blanche to host dangerous speech that promotes crimes or violence. U.S. lawmakers of both parties have proposed ways to whittle its protections, including in a 2018 law that allows lawsuits for promotion of sex trafficking.

President-elect Joe Biden even told The New York Times in January that “Section 230 should be revoked, immediately,” at least for platforms like Facebook, which he accused of “propagating falsehoods they know to be false.”

Trump’s focus on the statute is for a much different reason than Biden’s, however: Like other many other Republicans, he says Section 230 enables big tech companies to “censor” conservatives.

His attacks on the law have only escalated since Election Day, as Trump and his allies have dialed up accusations that tech companies contributed to his defeat by labeling or removing posts by him and his surrogates. The charges fed into long-standing complaints by Trump and other Republicans that Silicon Valley is stifling their political viewpoints.

His rhetoric has sharpened as well.

“For purposes of National Security, Section 230 must be immediately terminated!!!” Trump tweeted after 11 p.m. on Thanksgiving, five minutes after complaining about “big Conservative discrimination!”

Even so, a second former Trump aide said the veto threat surprised some people because the president has been largely removed from policy issues since the election. He even had to be persuaded to participate in the turkey pardon before Thanksgiving, the person said.

Turning up the heat

Trump first called for revoking Section 230 in May after accusing Twitter, a platform he uses prolifically to send messages to his 88 million followers, of “doing nothing about all of the lies & propaganda being put out by China or the Radical Left Democrat Party” while targeting conservatives.

The remarks emboldened a slew of GOP tech critics who had already advocated scaling back Section 230 over gripes about how tech companies handle conservative viewpoints.

Sen. Josh Hawley (R-Mo.), a close ally to Trump on the Section 230 front, said in September that Trump’s stance “had a big effect in opening the eyes of some of my Republican colleagues to realize this is a major issue.”

Some of the industry’s biggest Republican critics on Capitol Hill had long sought to get the issue on Trump’s radar.

Rep. Matt Gaetz (R-Fla.), who has accused the big tech companies of bias, told POLITICO in April 2019 that he aired his grievances about Section 230 with senior White House officials. “I think there’s a pretty keen understanding of the stake [sic] if there is not a level playing field for people to be able to make their arguments,” Gaetz said at the time.

Months later, word leaked out that the White House was drafting an executive order tasking federal agencies to clarify when the Section 230 protections apply to companies. In May, Trump signed a version of the order that took explicit aim at Twitter, Facebook, Instagram and Google-owned YouTube, which the White House accused of “engaging in selective censorship that is harming our national discourse.”

Since then, Republican officials across Washington have grown increasingly public in their criticisms of the legal shield, even those who in the past urged restraint in scaling it back. The attacks escalated as Twitter and Facebook became more assertive in labeling misleading posts around the election, which resulted in a slew of posts by Trump and his allies getting tagged for making unsubstantiated or false voting fraud claims.

Despite Trump’s claims that revoking Section 230 would address allegations of political bias, industry leaders and advocacy groups have warned that an all-out repeal would have the opposite effect. They say it would make it too legally risky for platforms to host incendiary content, given the increased liability, and that they’d in turn take more sweeping action against posts by the president and others. Instead, lawmakers have mainly proposed narrower changes, such as a bill by Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.) that would open companies up to more civil lawsuits for hosting child porn.

Eliminating Section 230 would also eliminate it for everybody, not just the Facebooks and Twitters of the world. That would mean increased liability for smaller platforms like Parler — the alternative social network that bills itself as "unbiased" — that have become newly popular among conservatives.

“There’s an obvious and urgent need for reform of this law in order to protect the public but I think President Trump’s interpretation or understanding of 230 is deeply flawed,” Peters said. “And what he’s demanding is not going to solve the problem he perceives.”

Anita Kumar contributed to this report.