Editor's Column

• Pages: 2-26
• Date: 01 January 2022
• Author: William R. Drexel
• Subject Matter: Derecho Público y Administrativo

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infrastructure

Vol. 61, No. 2

ISSN: 1097-251X

Infrastructure is produced quarterly

by ABA Publishing for the ABA

Infrastructure and Regulated

Industries Section.

©2022 by the American Bar

Association. To request reprints, go to

www.americanbar.org/utility/reprint.

Articles reflect the views of the authors

and do not necessarily represent

the position of the American Bar

Association or the ABA Infrastructure

and Regulated Industries Section.

Readers are encouraged to send news,

views, requests or suggestions to

infrastructure@americanbar.org.

Editor

William R. Drexel

billdrex@yahoo.com

Editorial Board

Steven C. Friend

sfriend@hunton.com

David R. Hardy

dhardy@osler.com

J.P. Shotwell

j.p.shotwell@sce.com

Dena E. Wiggins

dena.wiggins@ngsa.org

Section Chair

J. Bradley Fewell

bradley.fewell@exeloncorp.com

Section Director

Susan Koz

susan.koz@americanbar.org

American Bar Association

Chicago

Managing Editor

Lisa V. Comforty

lisa.comforty@americanbar.org

Senior Designer

Betsy Kulak

elizabeth.kulak@americanbar.org

Published in Infrastructure, Volume 61, Number 2, Winter 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

During his rst year in ofce, the President launched

an ambitious infrastructure plan for the federal

government to sponsor projects and institutions

designed to improve the conditions of society, calling on

Congress to construct a system of internal improvements to structures ranging

from roads and bridges to harbors and other systems of public works. The Presi-

dent launched this effort after an extremely close, contentious election lled with

name-calling and innuendo that resulted in further polarization of an already-

polarized country. After the election was over, the losing candidate claimed that

the election was stolen and began, with the help of his supporters in Congress,

to do everything possible to undermine not only the president’s infrastructure ini-

tiatives but also the legitimacy of the presidency itself. The year was 1825, and

John Quincy Adams had defeated Andrew Jackson to become the sixth president

of the United States. Adams was unable to get his ambitious plan through Con-

gress, and he was only able to accomplish a few modest projects.

Today, as I compose this message under perhaps similar circumstances,

the President has signed a sweeping $1.2 trillion infrastructure bill to upgrade

the nation’s roads, bridges, water systems, and broadband, touting the pas-

sage as evidence that bipartisanship can work even in a polarized time. It is

noteworthy that such a feat was accomplished when history provides evi-

dence of failure under those similar circumstances. Regardless of what you

think of this bill, it represents an enormous opportunity, and it has now been

This issue of Infrastructure focuses on cutting-edge

antitrust and civil liability issues facing companies in

the communications and tech sectors of our nation’s

economy that represent about 20 percent of the total

capitalization of the entire U.S. stock market. Those companies include trillion-

dollar behemoths Facebook, Apple, Amazon, Google, and Microsoft, which all

offer services that have been critical to our economic survival of the COVID

pandemic.

In the rst article, Big Tech Antitrust Enforcement Update, Jim Herbison cov-

ers the tremendous developments that have occurred in Big Tech antitrust

enforcement since he wrote his Spring 2020 Infrastructure article on the Big

Tech investigations that were incipient at that time. Those investigations have

produced a plethora of enforcement actions, civil lawsuits, and legislative pro-

posals that could reshape antitrust as well as Big Tech for years to come.

In our second article, Section 230: Twenty-Six Words that Created Controversy,

Joe Cosgrove traces the legislative genesis and judicial application of section 230

of the Communications Decency Act. That section of the Federal Telecommuni-

cations Act of 1996 creates immunity from liability for the content made available

by internet service providers, including the largest Big Tech companies that are

Chair’s Column

Editor’s Column

By J. Bradley Fewell

By William R. Drexel

continued on page 26

continued on page 26

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Published in Infrastructure, Volume 61, Number 2, Winter 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Cosgrove

Image © Rawpixel via Getty Images

We’re on the cusp of something exhilarating and

terrifying. . . . What the internet is going to do to society,

both good and bad, is unimaginable.

—David Bowie (1999)

One of the hottest topics in the internet and tele-

communication regulation space is an originally

rather obscure provision of the Telecommu-

nications Act of 1996: 47 U.S.C. § 230. The provision,

commonly referred to today as section 230, did not

attract much attention in 1996. But this attention decit

changed dramatically by 2021.1 This regulatory statute is

the topic of frequent intense debate and discussion in

various forums and by numerous politicians and pun-

dits. Some argue that this provision is responsible for

propelling the development of the internet. Others argue

that section 230 has served to nurture the growth of

online superpowers that control the ow of the content

of speech in the public square. The spillover effect of

this controversy has increased the strict scrutiny that is

being placed on “Big Tech”2 and led to numerous trips

to Capitol Hill for Big Tech’s CEOs.3

So, what is section 230? What is the issue with sec-

tion 230 a quarter of a century after

its enactment? What is the status of

section 230? Where might this contro-

versy end up? Let’s dive in.

Setting the Stage with the Telephone

Platform

Shortly after Alexander Graham Bell’s

rst call to Watson in 1876, subscrib-

ers likely began using their new

telephones to harass others and

commit crimes and torts. No specic evidence as to when

such nefarious practices started is offered here. But there

is a presumption based upon our awed human nature

that callers quickly tumbled to the idea of using the tele-

phone as a means of threat, extortion, theft, gossip, and

harassment.4

In any event, the early telephone companies were

treated as “common carriers.”5 Thus, as Professors Stuart

Minor Benjamin and James B. Speta explain, telephone

companies have been exempt from liability (for, e.g.,

defamation) for their customers’ miscreant deeds.6 The

basic idea was that the telephone companies did not

control or monitor the customers’ content.7 This fact

has traditionally distinguished telephone companies

from newspapers or television broadcasters, which have

been treated as “speakers or publishers” due to edito-

rial control over what appears in their type of media/

platform.8 As Tarleton Gillespie observed, telephone

companies traditionally have been “trusted interpersonal

information conduits,” as the service is the commod-

ity, not the information it conveys.9 This contrasts with

media content producers such as television and newspa-

pers, where the entertainment is the commodity and we

expect some content moderation.

Social media platforms, the focus of this article, are per-

haps a new category, “a hybrid between mere information

Section 230: Twenty-Six Words that

Created Controversy

By Joe Cosgrove Jr.

Joe Cosgrove Jr. (joe.cosgrove@jeclegislative.com) is the

founder of JEC Legislative & Regulatory Consulting, LLC, a

rm providing consulting services for local, state, and federal

legislative and regulatory issues; he is also an adjunct professor

at the University of Texas at Austin School of Law teaching

Internet and Telecommunication Regulation. Prior to these

more recent endeavors, he worked for AT&T for over 25 years,

proving legal support for state regulatory, legislative, and

external affairs matters in 10 states. Opinions expressed in this

article are those of the author alone.