Last week was the first time the US Supreme Court considered Section 230 of the Communications Decency Act of 1996. Oral arguments in Gonzalez v. Google raised important questions about platform liability and the risks of viral content.
As the courts grapple with these issues, why the 230 was created in the first place, how it encourages innovation, and what we all stand to lose if the protections built into the 230 are narrowed. It’s an opportunity to reflect on things.
Section 230, dubbed “The 26 Words That Created the Internet” by Jeff Kosseff, established a liability shield for platforms that host third-party content. In the early days of the Internet, 230 created favorable legal conditions for startups and entrepreneurs to thrive, cementing the United States as a world leader in software.
Today’s technology landscape is dramatically different than the fledgling Internet of the 90’s, but the reasoning behind Section 230 still applies today. The legal system creates the conditions for innovation and can also chill it.
Understanding how Section 230 supports the broader online ecosystem, especially software developers, seems lost in discussions aimed at the enormous influence of large social media platforms. looks like Developers are at the center of the online world and at the forefront of creating solutions to global challenges, working to make the software that underpins our digital infrastructure safer, more reliable, and more secure.
Policy makers need to recognize the critical role of developers and work to support them rather than stifle innovation.
Developers are using 230 to collaborate on platforms like GitHub to build and operate new platforms that are rethinking social media. Narrowing 230’s protections could have far-reaching implications, creating legal uncertainty for software developers, startups, and the important work of providing tools to bring their platform visions to life. As policy makers consider how to address the new frontiers of intermediary responsibility, it is imperative to put developers at the center of decisions that will shape the future of the Internet.
Software developers make significant contributions to US economic competitiveness and innovation and are important stakeholders in platform policy. GitHub’s platform has his 17 million American developers. This is more than any other country. Their open source work alone contributes over $100 billion annually to the US economy.
These developers maintain the invisible but essential software infrastructure that powers our daily lives. Nearly all software (97%) contains open source components and is often developed and maintained on GitHub.
As Chief Legal Officer of GitHub, a global community of over 100 million software developers collaborating to code, I know firsthand the importance of keeping 230 intact. While GitHub is far from a general-purpose social media platform, GitHub relies on 230 protections to host third-party content and engage in conscientious content moderation.
This is especially important when the platform has over 330 million software repositories. GitHub has been able to grow while maintaining the health of the platform thanks to intermediary liability protection. GitHub is committed to keeping the platform safe, sound and inclusive, while tailoring its approach to the unique environment of code collaboration where the deletion of one project can have significant downstream effects on thousands or more pieces of software. To keep it safe, we have a robust developer-first approach to content moderation. project.
As to the specifics of the Gonzalez v. Google case, which asks the court to consider whether algorithm-recommended third-party content should be included in the §230 liability protection, the decision in favor of petitioners is pending development. may have unintended consequences. Recommendation algorithms are used throughout software development in myriad ways that are different from general-purpose social media platforms.
A GitHub contribution to Microsoft’s Amicus Brief outlines our concerns. One such example is CodeQL on GitHub. It is a semantic code analysis engine that enables developers to find vulnerabilities and errors in open source code.
Developers use GitHub to maintain an open source project that employs algorithmic recommendations to block hate speech and remove malicious code. A court decision to narrow 230 to exclude protections for recommendation algorithms could quickly undermine a range of socially valuable services, including tools that maintain the quality and security of the software supply chain. .
The Gonzalez v. Google ruling seeking to withdraw protections that benefit social media platforms could have implications for the broader community. For court hearings, a large number of trial attorneys have had a wide range of influences, from non-profits (Wikimedia Foundation) to community content moderation (Reddit and Reddit moderators) to small businesses and startups (Engine). emphasized.
The call to narrow 230 is primarily focused on stifling Big Tech, which unintentionally stifles competition and innovation, further raising barriers to entry for next-generation developers and emerging providers. will be
These concerns are not exaggerated. In “How Law Made Silicon Valley,” Anupam Chander argues that “concerns about copyright infringement and strict privacy protections have hampered Internet startups.” We are verifying how we have created favorable conditions for In Asia, “Asian web companies faced not only copyright and privacy constraints, but also strict intermediary liability rules.”
Narrowing down the 230 will not only undermine US international competitiveness.it will hinder the progress of technology internal US GitHub has come a long way since our startup’s inception, but we’re committed to leveling the playing field so that anyone, anywhere can become a developer.
While we await Gonzalez v. Google’s court ruling, efforts to narrow down the 230 will surely increase, regardless of the outcome of the lawsuit, whether aiming for algorithmic recommendations, AI, or other innovations. It is important to note that While these new technologies raise important questions about the future of intermediary liability, policy makers should seek to create a legal environment that supports developers, start-ups, small businesses and non-profits. We must strive to chart the course of
Policy makers interested in reducing harmful content can take a look at how developers are leading content moderation. Developers can use GitHub to create open platforms that reflect policymakers’ demands for algorithmic transparency on platforms, such as the Algorithm Accountability Act of 2022 and the Algorithm Justice and Online Platform Transparency Act. We are developing a valuable software project, including source content moderation algorithms.
Platforms like Twitter, Bumble, and Wikimedia use GitHub to share source code for algorithms that flag misinformation, filter pornographic images, and block spam, respectively. Open source is driving innovation in content moderation while offering new models for community participation, oversight, and transparency.
Faced with new frontiers of brokerage responsibility, policymakers should recognize the critical role of developers and strive to support, rather than stifle, innovation.
