EFF at 30: Protecting Free Speech, with Senator Ron Wyden

To commemorate the Electronic Frontier Foundation’s 30th anniversary, we present EFF30 Fireside Chats. This limited series of livestreamed conversations looks back at some of the biggest issues in internet history and their effects on the modern web.

To celebrate 30 years of defending online freedom, EFF was proud to welcome Senator Ron Wyden as our second special guest in EFF’s yearlong Fireside Chat series. Senator Wyden is a longtime supporter of digital rights, and as co-author of Section 230, one of the key pieces of legislation protecting speech online, he’s a well-recognized champion of free speech. EFF’s Legal Director, Dr. Corynne McSherry, spoke with the senator about the fight to protect free expression and how Section 230, despite recent attacks, is still the “single best law for small businesses and single best law for free speech.” He also answered questions from the audience about some of the hot topics that have swirled around the legislation for the last few years. 

You can watch the full conversation here or read the transcript.

On May 5, we’ll be holding our third EFF30 Fireside Chat, on surveillance, with special guest Edward Snowden. He will be joined by EFF Executive Director Cindy Cohn, EFF Director of Engineering for Certbot Alexis Hancock, and EFF Policy Analyst Matthew Guariglia as they weigh in on surveillance in modern culture, activism, and the future of privacy. 

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Section 230 and Social Movements

Senator Wyden began the fireside chat with a reminder that some of the most important, and often divisive, social issues of the last few years, from #BlackLivesMatter to the #MeToo movement, would likely be censored much more heavily on platforms without Section 230. That’s because the law gives platforms both the power to moderate as they see fit, and partial immunity from liability for what’s posted on those sites, making the speech the legal responsibility of the original speaker.

Section 230…has always been for the person who doesn’t have deep pockets

The First Amendment protects most speech online, but without Section 230, many platforms would be unable to host much of this important, but controversial speech because they would be stuck in litigation far more often. Section 230 has been essential for those who “don’t own their own TV stations” and others “without deep pockets” for getting their messages online, Wyden explained. 

Wyden also discussed the history of Section 230, which was passed in 1996. ”[Senator Chris Cox] and I wanted to make sure that innovators and creators and people who had promising ideas and wanted to know how they were going to get them out – we wanted to make sure that this new concept known as the internet could facilitate that.” 

Misconceptions Around Section 230

Wyden took aim at several of the misconceptions around 230, like the fact that the law is a benefit only for Big Tech. “One of the things that makes me angry…the one [idea] that really infuriates me, is that Section 230 is some kind of windfall for Big Tech. The fact of the matter is Big Tech’s got so much money that they can buy themselves out of any kind of legal scrape. We sure learned that when the first bill to start unraveling Section 230 passed, called SESTA/FOSTA.”

We need that fact-finding so that we make smart technology policy

Another common misunderstanding around the law is that it mandates platforms to be “neutral.” This couldn’t be further from the truth, Wyden explained: “There’s not a single word in Section 230 that requires neutrality….The point was essentially to let ‘lots of flowers bloom.’ If you want to have a conservative platform, more power to you…If you want to have a progressive platform, more power to you.“ 

How to Think About Changes to Intermediary Liability Laws

All the positive benefit for online speech that Section 230 allows doesn’t mean that Section 230 is perfect, however. But before making changes to the law, Wyden suggested, “There ought to be some basic fact finding before the Congress just jumps in to making sweeping changes to speech online.” EFF Legal Director, Corynne McSherry, agreed wholeheartedly: “We need that fact-finding so that we make smart technology policy,” adding that we need go no further than our experience with SESTA/FOSTA and its collateral damage to prove this point. 

The first thing we ought to do is tackle the incredible abuses in the privacy area

There are other ways to improve the online ecosystem as well. Asked for his thoughts on better ways to address problems, Senator Wyden was blunt: “The first thing we ought to do is tackle the incredible abuses in the privacy area. Every other week in this country Americans learn about what amounts to yet another privacy disaster.”

Another area where we can improve the online ecosystem is in data sales and collection. Wyden recently introduced a bill, “The Fourth Amendment is Not For Sale,” that will help reign in the problem of apps and commercial data brokers selling things user location data.

To wrap up the discussion, Senator Wyden took some questions about potential changes to Section 230. He lambasted SESTA/FOSTA, which EFF is challenging in court on behalf of two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist, as an example of a poorly guided amendment. 

Senator Wyden pointed out that every time a proposal to amend the law comes up, there should be a rubric of several questions asked about how the change would work, and what impact it would have on users. (EFF has its own rubric for laws that would affect intermediary liability for just these purposes.)

We thank Senator Wyden for joining us to discuss free speech, Section 230, and the battle for digital rights. Please join us in the continuation of this fireside chat series on May 5 as we discuss surveillance with whistleblower Edward Snowden.