The outcome of the upcoming US elections is likely to have significant implications for a statute central to online platforms and the technology companies that host them.

Section 230 of the Communications Decency Act protects companies such as Meta Platforms Inc., Google LLC and X, formerly known as Twitter, from civil and criminal liability for user-created content published to their platforms. While both Democrats and Republicans have called for changes to the law, the major political parties differ over the details on what should be changed and how.

Specifically, the statute has two key provisions: Section 230(c)(1) ensures that no user or platform provider is treated as a publisher, creating a liability shield; and Section 230(c)(2) states that service providers and users may not be held liable for voluntarily acting in good faith to remove objectionable material. In recent years, Section 230 has emerged as a political lightning rod. Many Democrats, including President Joe Biden and Vice President Kamala Harris, say Section 230 fails to hold Big Tech companies properly accountable for their platforms. Many Republicans, including former President Donald Trump, say the statute has led to censorship of conservative voices on those platforms.

The statute's advocates, meanwhile, say Section 230 is an essential content moderation tool for the internet.

"Content moderation is really hard to do at scale," said India McKinney, director of federal affairs at the Electronic Frontier Foundation. "You should be allowed to have a pro-dog site that removes all cat-related content and vice versa, and still not be liable for the things your users post about dogs. We don't want to encourage platforms to do literally nothing."

Clarifying content moderation

A key point of contention is what role the Federal Communications Commission should play in interpreting Section 230.

FCC Commissioner Brendan Carr, the senior Republican on the commission, authored a chapter in the Heritage Foundation's 900-page policy blueprint for a future Republican US presidential administration, known as Project 2025. In it, he said the FCC "should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute." Carr added that Big Tech companies "should be required to offer a transparent appeals process that allows for the challenging of pretextual takedowns or other actions that violate clear rules of the road."

While Trump has publicly distanced himself from Project 2025, during his presidency he issued an executive order that would have resulted in the FCC reviewing Section 230 and proposing regulations to clarify the scope of immunity. The order, issued in May 2020, requested the agency clarify conditions where restricting access to material is not done in good faith.

Then-commissioner and current FCC Chairwoman Jessica Rosenworcel, a Democrat, opposed Trump's order at the time.

Noting that the FCC has not historically regulated online content, Rosenworcel said, "While social media can be frustrating ... The FCC needs to reject this effort to deploy the federal government against free expression online."

While the then-FCC Chair Ajit Pai said in October 2020 that he planned to move forward with a rulemaking to clarify the meaning of Section 230, he subsequently dropped the effort in January 2021, saying there was not enough time to complete the rulemaking ahead of the change in administrations from Trump to Biden.

In Project 2025, Carr wrote that the FCC has authority to interpret Section 230 because the CDA is codified in the Communications Act of 1934, which gives the FCC the power to issue rules necessary to carry out the provisions of the Act.

Carr, Rosenworcel and Republican Commissioner Nathan Simington did not respond to requests for comment from S&P Global Market Intelligence. Democratic Commissioners Ana Gomez and Geoffrey Starks declined to comment through their spokespersons.

Major questions

Should the FCC take action on Section 230, the agency's legal authority to interpret the statute would likely be challenged in court. Notably, the Supreme Court in 2024 overturned a longstanding legal precedent known as Chevron that required courts to defer to agencies' readings of ambiguous statutes. That 2024 decision has cast some uncertainty over the ability of agencies to assert rulemaking authority, and it is unclear how that precedent would impact legal challenges involving the FCC and Section 230.

"It's debatable, and it is hard to predict which way courts would go," said Robert McDowell, partner at the law firm Cooley and a former Republican FCC Commissioner. "Does Section 230 give the FCC a rulemaking authority? It's never been tried before, but depending on the election outcome — well, stay tuned."

The FCC is relying on the argument that it derives explicit authority to interpret Section 230 from the Communications Act, which would negate the need to cite the Chevron precedent, said Alan Rozenshtein, associate professor of law at the University of Minnesota Law School.

"If the courts conclude that the Communications Act doesn't explicitly give the FCC interpretive authority over Section 230, the FCC would have preferred to be able to fall back on Chevron," Rozenshtein said. But even under Chevron, the FCC would have faced an uphill legal battle, Rozenshtein added.

Three branches, no solutions

Since 2020, Section 230 has proven a three-branch problem for government officials. While both Democrats and Republicans want to change the scope of the law, they disagree about whether the authority to do so rests with Congress, executive action or the FCC acting independently, Rozenshtein told Market Intelligence.

Even Carr, in his Project 2025 chapter, said the FCC should work with Congress to "support legislation that scraps Section 230's current approach."

Noting the legislation could be limited to dominant general use platforms, Carr said Congress should ensure "that internet companies no longer have carte blanche to censor protected speech while maintaining their Section 230 protections."

A number of Democrats also support Congressional action. In a 2020 interview with The New York Times editorial board, Biden said he wanted to revoke Section 230. More recently in May, House Energy and Commerce Committee Chair Cathy McMorris Rodgers, R-Wash., and Ranking Member Frank Pallone, D-NJ, wrote an op-ed in The Wall Street Journal calling for sunsetting Section 230 with bipartisan legislation.

"Reforming Section 230 won't 'break the internet' or hurt free speech, as Big Tech warns," the lawmakers wrote. "The First Amendment — not Section 230 — is the basis for our free-speech protections in the US, and it won't cease providing them even if Section 230 immunity no longer exists."

Middle ground

Most of those with substantive objections to Section 230 do not want to do away with the law entirely, proposing revisions instead. Many suggested alternatives, however, are opposing extremes that would degrade internet users' experience, said EFF's McKinney.

"We would either see people lock it all down, and it's very boring and you don't get to say anything," McKinney said, "Or they just abandon all pretense of content moderation, and we're just overrun with spam and bots."

While Section 230 has attracted many criticisms in recent years, it has some benefits as well. The difficulty lies in achieving a bipartisan consensus for reform.

Ash Johnson, senior policy manager at the Information Technology and Innovation Foundation, wrote that sunsetting Section 230 entirely would result in "an influx of frivolous lawsuits" against online services that host user-generated content and hinder innovation.

The resulting legal overhang would weigh on the tech sector.

"[Section 230] has created an explosion of entrepreneurial brilliance that has largely benefited the United States of America and its economy," McDowell said. "Great wealth and great efficiencies have been created as a result."