Regulating Internet Services by Size

In their zeal to curb Big Tech, regulators are crafting legislative reforms that make distinctions between Internet services based on size. A crucial Internet law, Section 230, is among the targets for such reforms. This essay discusses the nuanced considerations that regulators should address when drafting size-based distinctions for Internet services. It also raises concerns that such distinctions are not good policy in the context of Section 230.

By Eric Goldman & Jess Miers¹

I. INTRODUCTION

Regulators across the globe want to impose more stringent regulations on “Big Tech,” but that requires regulators to explain what “Big” Tech means. As it turns out, it’s not easy to craft sensible regulations that distinguish Internet services by size.

This essay will consider how regulators might incorporate a size-based regulation distinction into a critically important Internet law, Section 230,² which says websites typically aren’t liable for third-party content.³ When Congress enacted Section 230 in 1996, the Internet looked quite differently than it does now.⁴ Now, with help from Section 230, Google and Facebook have emerged as two of the most valuable companies ever.⁵ In response, pending bills would reduce or eliminate Section 230 for large services.⁶ Other proposals at the federal⁷ and state⁸ level would impose greater duties on big Internet services.

This essay discusses the logistical considerations when drafting size-based distinctions for Internet s