"I'm not a fan of Section 230," said panelist Joel Reidenberg, professor at Fordham University School of Law and the founding academic director of its Center on Law and Information Policy. "230 was enacted to help support small Internet services," he said. "Now, we're seeing real harm to real people. Section 230 makes redress for victims quite difficult."
The position taken by the large Internet players is that market forces and self-regulation, rather than laws, offer the best protection against abuses, and that view was represented by Christopher Wolf, a partner at Washington, D.C., law firm Hogan Lovells and co-chairman of the industry-funded Future Privacy Forum. Limiting Section 230 immunity "would harm freedom of expression," he said, citing the Center for Democracy and Technology's position on the law.
One avenue prosecutors may seek to explore is the statute's vague definition of an intermediary versus a content provider, Reidenberg suggested. During discussion after the panel presentations, Mississippi Attorney General Jim Hood pressed that angle, asking the panelists what acts by a site operator might be sufficient to categorize it as a content provider, not simply an intermediary.
Hood zeroed in on autocomplete in particular, saying, "We know they manipulate the autocomplete feature." He is concerned about search engines, particularly Google, where for example a user entering "prescription drugs online" is given "prescription drugs online without a prescription" as an autocomplete option.
Hood's office has been investigating the role Google search and advertising plays in facilitating illegal purchases of prescription drugs and pirated intellectual property, activities he elaborated on for the NAAG group later on Tuesday. While television stations and newspapers would be easily prosecutable for such behavior, Section 230 protects online companies such as Google from legal consequences, according to Hood.
The statute was designed as a shield, Hood said, but in the face of challenges to the role it plays in drug sales and piracy, he sees Google using Section 230 "as a sword."