Graham Todd reviews “The Twenty-Six Words That Created the Internet”

Today Lawfire^® contributor Graham Todd reviews Jeff Kosseff’s The Twenty-six Words That Created the Internet :

The Twenty-Six Words That Could be Our Downfall

by Graham Todd

“There’s a war out there, old friend. A world war. And it’s not about who’s got the most bullets. It’s about who controls the information. What we see and hear, how we work, what we think… it’s all about the information!” (Cosmo, from “Sneakers,” Universal Pictures, 1992)             

Five years after its publication, I finally read Jeff Kosseff’s important and excellent book, The Twenty-Six Words That Created the Internet (hereafter Twenty-Six Words).  While this review may be five years overdue, my tardiness may be fortuitous. 

When most people think of cyberspace, they think of hacking and cybercrime, and Nicole Perloth’s excellent This is How They Tell the World Ends is the book I always recommend to open their eyes and scare their souls. 

However, there is a different information war going on, and many of us hardly understand how the battlefield was shaped by one sentence in U.S. Code.  With an easy to ready style and personal reflections, Twenty-Six Words thoroughly equips anyone who wants to understand and to engage in the technology debate that may define the future of American society.

But, what are those twenty-six words and why should they matter so much to all of us?  Kosseff’s book focuses on the once obscure Section 230 of The Communications Decency Act (CDA), which was passed by Congress and signed into law by President Clinton in 1996. 

Section 230(c)(1) reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 

Mr. Kosseff’s book title is not hyperbole, and he explains why today’s Internet would likely be wholly different without Section 230.  As Jeff Kosseff begins Twenty-Six Words, he admits he has a First Amendment bias as a former journalist turned lawyer and is therefore in favor of Section 230 of the CDA.

Twenty-Six Words spends just the right amount of time to explain the different basis for liability as a publisher versus a distributor, using the conviction and subsequent appeal of Eleazar Smith, a bookseller in California as the compelling narrative. 

In 1959, the Supreme Court ruled against government censorship in Smith v. California, requiring that a distributor either know or have reason to know of the unlawful or defamatory content in the material.  And with the background complete, Twenty-Six Words takes us to the internet age.

Mr. Koseff highlights two cases involving early internet service providers (ISP), Compuserve and Prodigy, with the Stratton v. Oakmont case finding Prodigy liable as a publisher because it had processes in place to delete offensive online posts.  (Page 71 Kindle ed.).  With the potential for liability looming over the nascent but rapidly growing internet, Mr. Koseff deftly sets the reader up for the rest of the tale.

Twenty-Six Words takes the reader behind the scenes during the bill-making journey where two U.S. Representatives came up with Section 230 to, in their words, “make sure the people who were in the best position to clean up the internet would do so, because “right now there was a disincentive for them to do it.”  (Page 76,).  With its overwhelming passage in early 1996, the CDA, and its overlooked Section 230 became law.  Now it was time for the courts to apply Section 230.

In the primary section that Mr. Koseff, calls “The Rise of Section 230,” Twenty-Six Words lays out the development of the case law that consistently ruled Section 230 protects online service providers from liability for the materials posted by the provider’s users, “interactive computer service” providers, reinforcing a key theme: the internet is different, and “Internet exceptionalism is at the heart of Section 230.”  (Page 97).   Using the cases of Zeran v. AOL and Batzel v. Smith, internet exceptionalism became almost impenetrable thanks to Section 230.

Twenty-Six Words masterfully offers an almost “zero sum game” choice for the reader between the near absolute immunity of Section 230 versus the traditional liability approach for distributors who know or should know of defamatory content, which Mr. Koseff states “could amount to a heckler’s veto for anyone who was not happy with their reviews and ratings on Yelp …”  (Page 163). 

In the third and final section titled, “The Gradual Erosion of Section 230,” Mr. Koseff attempts to show how the language of Section 230 allows for liability when the service “materially contributes” to the development of the content, especially if the content violates some other law.  

Mr. Kosseff presciently notes the increasing use of algorithms to process user data is creating an unresolved question as to how much a service “materially contributes” to the development of content.  (Page 229).

In the book’s fourth section, “The future of Section 230,” Mr Koseff concludes that “we should preserve the core Section 230 immunity because the overall benefits of an open Internet outweigh the harms.”  (Page 248).

Twenty-Six Words does discuss two of the clear cyberspace content challenges, pornography and harassment, quoting a leader in the field, Ann Bartow: “Under Section 230 the financial incentive for ISPs all fall in favor of ignoring internet harassment. 

Controversial news reports, … even when false, generate logons, eyeballs, and browser clicks, all the things that lead to revenue streams.”  (Page 253).  However, no solution is offered.

Optimistically, Twenty-Six Words points to the Internet as “a tool for self-help”, giving people “a voice against even the most powerful,” and highlights the “#Me Too” movement.  (Page 269).   

Twenty-Six Words wisely cautions: “There is no way to quantify whether the harms to individuals such as Jones outweigh the benefits of Section 230, … An individual’s position on Section 230 depends on how that person prioritizes values such as free speech and privacy.  I have a bias toward free speech …”  (Page 270). 

Unfortunately, Mr. Kosseff only briefly touches on the challenging issue involving terrorists’ use of social media platforms , and even fewer words on Russian interference in the 2016 election – an incredibly asymmetric move against America’s democracy.  As Twenty-Six Words nears its end, Mr. Kosseff turns to what is really the most critical aspect of Section 230 – the almost limitless authority that service providers have to remove content. 

Subsection 230(c)(2) specifically allows “good faith” actions to block or remove “obscene, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material.  (Page 284). 

Mr. Kosseff posits that the services are “better suited to be the gatekeepers of online speech.”  (Page 296).  However, Twenty-Six Words does not address that neither Section 230 nor the Supreme Court have defined “otherwise objectionable,” a term ripe for corporate preference.

Twenty-Six Words positively covers the only amendment of Section 230, which dealt with online sex trafficking when Public Law 115-164 was passed, creating criminal penalties and clarifying that Section 230’s coverage does not apply to sex trafficking. 

Yet, Mr. Kosseff concludes the chapter by cautioning that the law’s passage “has set a precedent for amending Section 230 … such amendments … could gradually erode the ability of platforms to allow unfettered third party content.”  (Page 323).

While I found myself disagreeing on a number of points made by Mr. Kosseff, Twenty-Six Words was always easy to read and loaded with all the information needed to fully understand a complex area of First Amendment and Cyberspace Law. 

As America and the rest of the connected world grapple with challenges such as online election interference, disinformation, and social media content causing harm to minors and others, it is clear that Section 230’s twenty-six words are at the legal epicenter of this maelstrom that pulls at so many aspects of our modern world. 

Twenty-Six Words is a must-read for those who recognize that Cosmo’s information war has arrived and want to have a solid foundation for the legal and policy debate that should not be delayed.

About the Author

Graham Todd is a retired Lieutenant Colonel who served in the U.S. Air Force Judge Advocate General Corps and still serves as Counsel for Global Strike and Nuclear Operations at Air Force Global Strike Command.  He earned his B.S. from U.S. Air Force Academy in 1993, a M.A. in Russian and East European Studies from Univ. of Kansas in 1994, and his J.D. from Florida State University in 2001.

*Disclaimers:

The views expressed are those of the author and do not reflect the official policy or position of Air Force Global Strike Command, the Department of the Air Force, the Department of Defense or the United States Government.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.  See also here.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!