This month, the essay Discriminatory Designs on User Data by McGannon Center Director Olivier Sylvain was featured in the Emerging Threats by the Knight First Amendment Institute. The Emerging Threats series invites leading thinkers to identify and grapple with newly arising or intensifying structural threats to the system of free expression.
“The stated aim of online intermediaries like Facebook, Twitter, and Airbnb is to provide the platforms through which users freely meet people, purchase products, and discover information.1 As “conduits” for speech and commerce,2 intermediaries such as these are helping to create a more vibrant and democratic marketplace for goods and ideas than any the world has seen before.3
That, at least, is the theory on which Congress enacted Section 230 of the Communications Decency Act (CDA) in 1996.4 One of the central objectives of Section 230’s drafters was to ensure that intermediaries are “unfettered” by the obligation to police third-party user content.5 They believed that conventional tort principles and regulatory rules were simply not workable in an environment in which so much user content flows,6 and they doubted that intermediaries would be able to create new value for users if they constantly had to monitor, block, or remove illicit content. In the words of free speech doctrine, members of Congress worried the intermediaries would be “chilled” by the fear that they could be held legally responsible for content posted by users.7“