"Do more business or I'll eat your Goldfish."

Richard Lawson, Partner, Gardner Brewer Martinez-Monfort, Tampa

According to Daniel Porush, that's one of the few accurate representations of his time with infamous brokerage firm Stratton Oakmont in the movie "The Wolf of Wall Street." In this scene, the character played by Jonah Hill—loosely based  on Porush—expresses his displeasure with a young staffer during an important firm event.

In addition to providing grist for Hollywood's storytelling mill, Porush also played a significant role in developing the internet as we know it today. In the early 1990s, an anonymous user on a listserv hosted by Prodigy posted comments that Porush was a "soon to be proven criminal" and that Stratton was "a cult of brokers who either lie for a living or get fired."

Displeased with these posts, Stratton Oakmont sued Prodigy on general claims involving defamation. Essential to the theory of the case was that Prodigy had undertaken efforts to monitor and police the comments on the listserv. The court decided the case for Stratton Oakmont under the theory that by having undertaken efforts to police any part of the website, it was responsible for all defamatory content on the sight. By way of illustration, at roughly the same time another lawsuit was brought against CompuServe, who successfully defended the action on the theory that since they undertook no efforts to police or monitor the content, they were not a publisher, and thus immune to lawsuits on any type of defamation theory.

In reaction to this decision involving Porush and Stratton Oakmont, in 1996 Congress enacted the Communications Decency Act, 47 U.S.C. 230, commonly referred to as CDA 230. CDA 230 revolutionized the then-nascent internet industry by essentially immunizing websites for publishing content that they neither created nor developed, in whole or in part.

The effect of this has been tremendous. Social media companies have been able to police their websites, knowing that if anything slipped through the cracks that was defamatory, and for which a traditional publisher would have been subject to liability, they'd be fine.

For roughly 20 years, CDA 230 was an unassailable bulwark of the tech industry. Critical commentary was few and far between, but starting around 2015 rumblings emerged. In 2018, the FOSTA-SESTA amendments to CDA 230 carved out exceptions for CDA immunity for offenses involving sex trafficking. These amendments received overwhelming bi-partisan support.

In recent years, the tech industry has been subject to increasing antitrust oversight and inquiries from state and federal officials. While not necessarily focused on the impact of CDA 230, any inquiry into any social media company is going to quickly encounter the statute's role in creating the current internet landscape. In many ways, it could be (and probably has been to regulators) argued that the social media industry as it exists today is the inevitable product of CDA 230 and was Congress' goal in enacting it.

Unsurprisingly, then, the Department of Justice—which has been taking the lead on the antitrust investigations—has just issued suggested changes to CDA 230. The proposals have four main priorities: to incentivize platforms to remove illicit content; to prohibit CDA 230 from preventing federal civil enforcement; to bar CDA 230 from preventing any antitrust action; and fostering transparency in how decisions are made to remove content.

The first proposal, incentivizing the removal of illicit content, is an expanded development from the FOSTA-SESTA amendments. DOJ is encouraging Congress to make changes so that companies will be more aggressive in removing illegal content.

The second proposal, removing CDA 230 as defense to federal civil enforcement could be tremendously significant. While not receiving extensive detail in the DOJ report, if this is meant to prevent parties from raising CDA 230 as a defense to an FTC investigation, then websites and other parties in the digital marketing space who, up until now have had relative immunity for such matters as deceptive advertising, will find that they now have significant exposure to governmental enforcement. It is entirely possible that this provision could be expanded so that CDA 230 would not prevent enforcement actions brought by state attorneys general.

The proposal to prevent CDA 230 from being waived in the midst of an antitrust action is no doubt one of the biggest reasons prompting this step from DOJ. As discussed above, the current social media environment is in many ways a direct consequence of CDA 230. In addition to the argument that social media companies are in the size and condition they are in because of CDA 230, there is also the practical issue of what an antitrust action could do to change the landscape. In many ways, the problems an antitrust action might seek to remedy are not so much the fault of industry practice but of Congressional action; accordingly, litigation may be a very ineffective tool to remedy a problem created by legislation.

Lastly, calls to have companies engage in greater transparency with decision-making about posts is most likely a result of concerns raised by many on the right that there is an anti-conservative bias within social media companies. The concern DOJ is attempting to address is the issue raised by many that the privileges granted internet companies should come with the burdens of politically balanced platforms. CDA 230 grants companies significant advantages that traditional, noninternet-based entities do not enjoy, and the concerns raised by DOJ speak to the idea that Congress has the power to create a balanced marketplace of ideas.

While the tech industry as a whole has recently come under significant and bi-partisan scrutiny in Congress and multiple inquiries from state and federal regulators, it is unlikely that during an election year significant change to such an important statute as CDA 230 will take place. However, the DOJ proposals offer a significantly detailed set of goals, and they are based on a lengthy process informed by stakeholders in this space. It is entirely likely that—regardless of the outcome of the 2020 presidential election—these proposals will form the starting point for Congressional review of CDA 230 next year. Regardless of what if any changes take place, it is not an unfair statement to assert that Porush and Stratton Oakmont did more to create the internet as we know it than, yes, even former Vice President Al Gore.

Tampa attorney Richard Lawson, formerly Florida's consumer protection czar (he headed up the Consumer Protection Division of the Florida Attorney General's Office), is a shareholder at law firm Gardner Brewer Martinez-Monfort.