Could Section 230 be used to regain control of our Facebook feeds?

Section 230, the famous 1996 statute, has been shielding internet companies, including social media platforms, from liability for ages. One law professor now thinks he can turn the document against big tech – but how?

Often called the law that “created the internet,” Section 230, a provision of the 1996 Communications Decency Act, has been under fire multiple times over the years – but it’s still here, and it keeps being praised by tech companies.

It’s those famous 26 words – “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” – that protect social media firms from being sued for their users’ posts.

Critics say that Section 230 gives tech companies too much power and control over what’s allowed on their sites, and since they’re often toxic, the quality and decency of public discourse have suffered massively.

Supporters, of course, include those very same firms but also free-speech advocates who say that without the law, the internet as we know it would be stifled and change dramatically.

The debate is seemingly eternal. But then Ethan Zuckerman, a technologist and professor at the University of Massachusetts at Amherst, had a revelation, realizing about three years ago that Section 230 also protects – or should protect – users who want to filter or moderate the content they see online.

Well, at least that’s what Zuckerman – who is now going to court – thinks. Law experts welcome the suit filed in California by Columbia University’s Knight First Amendment Institute on Zuckerman’s behalf but point out that big tech will fight back and might succeed.

“Unfollow Everything 2.0”

Zuckerman says he was inspired by the case of his friend Louis Barclay, a developer who said he was permanently banned from Facebook and Instagram after building a tool called “Unfollow Everything.” It allowed users to indeed completely reset their feeds and start anew.

In theory, users should have the right to do precisely that, and if a tool exists to restart their social media experience and get rid of all the annoying stuff – perfect! Unfortunately, this doesn’t work for big tech, who are keen to sell our data and attack us with ads.

In 2021, Facebook sent Barclay a cease-and-desist letter, disabled his account, and demanded that he take down the “Unfollow Everything” tool. After calling Facebook’s behavior “anti-consumer,” Barclay called it quits on the tool – he couldn’t afford litigation.

But now, Zuckerman has taken up the fight. In the lawsuit, a California court was asked to declare that Meta cannot ban or sue him for building an unfollowing tool inspired by the one developed by Barclay.

Then, if the lawsuit succeeds, Zuckerman is planning to release the tool called “Unfollow Everything 2.0.” The hope is that a wave of other similar tools, promising to give users more control over what they see online, will follow.

“The tool would allow users to unfollow their friends, groups, and pages, and, in doing so, to effectively turn off their newsfeed – the endless scroll of posts that users see when they log into Facebook,” says the complaint.

“Users who download the tool would be free to use the platform without the feed or to curate the feed by refollowing only those friends and groups whose posts they really want to see.”

Zuckerman also seeks a declaration that the tool does not violate Meta’s Terms of Service, the Computer Fraud and Abuse Act, or California’s Computer Data Access and Fraud Act. And he’s sure Section 230 will help.

The right to see what we want to see

Zuckerman recognizes that, as a general matter, social media companies may design their products as they wish. Moreover, Section 230 essentially gives these firms the right to police content on their platforms as they see fit.

Simply put, Facebook doesn’t even need to have an army of human or machine moderators to sift through millions of posts to make sure they’re not violating any laws. The network still has rules because it’s under societal pressure, but it’s not responsible legally.

However, Zuckerman also says that with Section 230, Congress actually sought to empower and encourage individuals, families, and schools to “self-police” the information they receive online.

Section 230, he quotes in the lawsuit, immunizes from legal liability “a provider of software or enabling tools that filter, screen, allow, or disallow content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

According to Zuckerman, precisely through this provision, inserted in Section 230, the lawmakers intended to promote the development of filtering tools that enable users to “curate their online experiences and avoid content they would rather not see.”

“I think in many ways Section 230 has become shorthand for, ‘The internet giants have too much power,’” Zuckerman told The Washington Post. “The funny thing is, when you actually read 230, it has language in there that could give us a path to more control.”

Ramya Krishnan, senior staff attorney at the Knight Institute, added: “Users don’t have to accept Facebook as it’s given to them. The same statute that immunizes Meta from liability for the speech of its users gives users the right to decide what they see on the platform.”

Is Meta too powerful to lose?

Now, will the lawsuit succeed? That’s probably highly unlikely as, of course, Meta is a trillion-dollar company, able to block users left and right and pay fines of any size.

Lest we forget, Meta agreed to pay $725 million in 2022 to resolve a class-action lawsuit accusing the social media giant of allowing Cambridge Analytica and other third parties to access users’ data, and it didn’t really hurt the company.

Meta is declining to say anything about Zuckerman’s lawsuit. But it has a history of shutting down similar projects – it can afford it, after all.

In the first quarter of 2024, Meta’s revenue rose 27% to $36.46 billion from $28.65 billion, and the number of people using Meta’s apps has increased to 3.24 billion users, up 7% year-over-year.

The company is declining to say anything about Zuckerman’s lawsuit. But it has a history of shutting down similar projects – it can afford it, after all.

For instance, in 2021, Meta went after New York University’s Ad Observatory, a tool to study political ads on Facebook – researchers were banned from the platform after the network said it had to comply with a Federal Trade Commission privacy agreement (it hadn’t, the FTC immediately said).

Zuckerman, as mentioned above, first wants to wait for the court’s verdict – only if the ruling is favorable will he release the unfollowing tool. He’s being careful.

Experts are excited but also wary. For example, Daphne Keller of Stanford’s Cyber Policy Center said on X that an overly broad ruling could force Meta to allow “any third party to come along and hoover up data in the name of middleware (that’s what filtering tools are known as).”

But she also mentioned a possible compromise – maybe “Unfollow Everything 2.0” could be immunized for collecting the data necessary to function while still being liable for any misuse of the information.

Keller said, though: “I am seeing a lot of skepticism about this case from wonks (people who take a keen interest in detailed cases) on lots of different grounds.” But then added: “Glad someone is taking these arguments out for a spin, whatever happens.”