Good Intentions and Unintended Consequences: SESTA/FOSTA's First Two Years
![handle is hein.journals/temple93 and id is 160 raw text is: GOOD INTENTIONS AND UNINTENDED CONSEQUENCES:
SESTA/FOSTA'S FIRST TWO YEARS*
I. INTRODUCTION
Section 230 of the Communications Decency Act' is a 1996 law that provides the
critical infrastructure of the internet.2 At a basic level, the law insulates websites from
liability for any illegal or tortious conduct posted by their users.3 It also empowers
websites to moderate user content without legal consequence.4 In its more than
twenty-year existence, Section 230 has transformed from a relatively popular attempt to
encourage websites to self-moderate into one of the more controversial laws in the U.S.
Code.5 Today, politicians on both sides of the political aisle criticize Section 230. While
they are united in their distaste, they are extremely divided in their assessment of its
problem or solution. Some worry that the law's liability shield has enabled vile online
harassment and criminal activity.6 Others complain that, under Section 230, websites
overmoderate user speech along partisan lines.7 In May 2020, President Trump signed
an executive order on preventing online censorship, which took aim at social media
companies.8 Soon after, Democratic Presidential Nominee Joe Biden put out his own call
to revoke Section 230 entirely.9 In June 2020 alone there were no fewer than four
proposals to reform the law, each in its own unique way.10
Lucy Wiesner, J.D. Candidate, Temple University Beasley School of Law, 2021. Thank you to
Professor Erika Douglas for her invaluable support and guidance.
1. 47 U.S.C. § 230 (2018).
2. See infra note 40.
3. See infra notes 54-56 and accompanying text for an explanation of the immunity provided to websites
under Section 230.
4. Id.
5. Eric Goldman, The Complicated Story ofFOSTA and Section 230,17 FIRST AMEND. L. REV. 279, 279
(2019) [hereinafter Goldman, The Complicated Story].
6. See, e.g., Makena Kelly, Kamala Harris Vows to Hold Social Media Platforms Responsible for Hate,'
VERGE (May 6, 2019, 11:52 AM), http://www.theverge.com/2019/5/6/18531181/kamala-harris-social-media
-democratic-primary-2020-president [https://perma.cc/R24C-3WDV].
7. See, e.g., Cristiano Lima, Josh Hawley Readying Broadside Against Big Tech's Ad Business, Legal
Shield, POLITICO (June 15, 2020, 6:00 AM), http://www.politico.com/news/2020/06/15/josh-hawley
-big-tech-ad-business-legal-318823 [https://perma.cc/8G5J-DAZT].
8. Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020).
9. Eli Blumenthal & Queenie Wong, Joe Biden Slams Facebook, Calls Zuckerberg a 'Real Problem,'
CNET (Jan. 17, 2020, 4:07 PM), http://www.cnet.com/news/joe-biden-slams-facebook-calls-zuckerberg
-a-real-problem-in-new-york-times-interview/ [https://perma.cc/T87X-J92B].
10. A Department of Justice (DOJ) proposal recommends withholding Section 230 protections from
websites that do not maintain the ability to assist government authorities to obtain content (i.e., evidence) in a
comprehensible, readable, and usable format as a way to discourage websites from allowing criminals to
communicate through encrypted channels. U.S. DEP'T OF JUSTICE, SECTION 230 - NURTURING INNOVATION OR
FOSTERING UNACCOUNTABILITY? 15 (2020). Senator Josh Hawley (R-MO) proposed a likely toothless bill
which would require websites to provide more transparent, good-faith content moderation. See Limiting Section
230 Immunity to Good Samaritans Act, S. 3983, 116tha Cong. (2020). The Hawley bill would empower citizens
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Good Intentions and Unintended Consequences: SESTA/FOSTA's First Two Years
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