Section 230 catches up to AI
Subscribe to enjoy similar stories. Is TikTok toast? Fearing Chinese spying, the U.S. decided to ban TikTok last April if it wasn’t sold by January 2025.
TikTok owner ByteDance refuses to sell and sued. At a U.S. Circuit Court of Appeals for the District of Columbia hearing last week, Judge Douglas Ginsburg, asked, “Why is this any different, from a constitutional point of view, than the statute precluding foreign ownership of a broadcasting license?" Why indeed.
Broadcasters are publishers. Is TikTok? Social-media companies flourished under the protection of Section 230 of the Communications Decency Act of 1996, which states: “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." In other words, anyone hosting content on a server or platform can’t be sued by others for that content. But we’re a long way from 1996.
Online service Prodigy—remember it?—lost a 1995 defamation suit brought by bucket-shop brokerage Stratton Oakmont, which sparked passage of Section 230. Remember, no one even had a BlackBerry back then. Now, algorithms and artificial intelligence, not humans, decide what’s on our feeds.
TikTok’s FYP or “For You Page" algorithm uses AI to serve up videos. The $200 billion question is: Does using AI or algorithms make you a publisher? I think so. And so does the Third Circuit.
On her TikTok “For You Page," 10-year-old Nylah Anderson was shown a “Blackout Challenge" video encouraging the recording of self-asphyxiation. She hanged herself. Her mother sued and the case wound its way to the appeals court, which noted that TikTok’s FYP algorithm “is not immunized by Section 230 because the algorithm is
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