Government overreach warped a law to protect the internet. Now Congress might let it die. Here’s why.

Why does Section 230 exist? Section 230 shields tech companies from liability for the user-generated content they host. If you listened to the 230 absolutists here (one of whom even has a 230 tattoo), the story of 230 might sound like a divine creation story.

In the beginning, God created Section 230. Now, the internet was formless and empty, darkness was over the surface of the deep, and the blessings of liberty were hovering over the waters. And God said, “Let there be Section 230,” and there was Section 230.

So why would Sen. Lindsey Graham (R-S.C.) and Sen. Dick Durbin (D-Ill.) even think about sunsetting this law, potentially returning the internet to the world of darkness? In the real story of Section 230, the government created Section 230. And that story begins with good intentions but ends with government overreach.

Let us begin with the good intentions. Imagine that, hypothetically, a rapist and human trafficker becomes a popular social media influencer on X. And one of his victims tweets that he is a rapist and human trafficker. The influencer then files a frivolous defamation lawsuit against not just the victim—but also against X for hosting her tweet.

In that situation, X can invoke the legal shield of Section 230, and the judge will dismiss the lawsuit. But that is only where the story begins, not where it ends.

Imagine that you’re in high school, and you learn from your classmates that there’s child porn of you on Twitter. Multiple people contact Twitter to take it down, and you even provide Twitter a copy of your ID when asked, but it still doesn't take it down — until a federal agent intervenes.

You sue Twitter, alleging that it violated federal child pornography laws. Twitter does not even attempt to contest that allegation. Instead, it invokes the legal shield of Section 230, and the judge dismisses your claim.

That, in a nutshell, is the real story of Doe v. Twitter: “Twitter does not argue that Plaintiffs have failed to allege a violation of Section 2252A but contend this claim is barred by CDA § 230 immunity. The Court agrees.”

In tech policy, we must analyze the full scope of a law. In Moody v. NetChoice (2024), the court chided both sides for confining their battle to the “heartland applications” of a law and for ignoring the “full scope” of the law’s coverage.

And while the 230 absolutists will defend Section 230 based on its heartland applications — defamation and other forms of tort liability — the full scope of Section 230 touches every single federal and state law, including federal child pornography laws.

Section 230 is the government. It’s a special immunity for the tech industry that’s created by the government. Under normal circumstances, the story of Doe v. Twitter should be a story where injustice triumphs because of government overreach.

Yet, when Sen. Graham and Sen. Durbin attempted to narrowly reform Section 230 for child porn alone, they were met with an apocalyptic reaction from both D.C. lobbyists and D.C. think tanks. And the worst culprits were the (corporate) libertarians who supposedly hate government overreach.

Perhaps that explains why both senators are now trying to sunset Section 230: to obtain leverage for 230 reform. In D.C., the easiest path is one where the Congress does nothing. Today, Section 230 stays the same if nothing happens. Sen. Graham and Sen. Durbin lack meaningful leverage — even if they are attempting to reform 230 for child porn alone.

But if Section 230 sunsets on January 1, 2027, it gets repealed if Congress does nothing. Now Sen. Graham and Sen. Durbin hold the leverage. And while I could speak for hours to debunk the bad (or even bad-faith) arguments against 230 reform, those bad arguments also lose their power when the people making them lose their leverage.

No immunity for child porn does not mean, for example, that a tech company would be directly liable for every piece of child porn that a user posts. No federal or state law imposes such strict liability — in part because that would be unconstitutional under Smith v. California (1959). For all this talk of how Section 230 is “the Internet’s First Amendment,” repealing Section 230 would not repeal the actual First Amendment.

No immunity for child porn does mean, however, that if any incident like Doe v. Twitter were to repeat itself, government overreach would not block the victims from seeking justice.