President Trump on Thursday signed an executive order regarding Section 230 of the Communications Decency Act, the provision of the law that shields tech companies from liability for censoring content on their platforms.
This comes on the heels of Twitter deciding it would “fact-check” one of the president’s tweets about voting by mail. Chinese propaganda and outright falsehoods from the World Health Organization, meanwhile, remain unmolested by Twitter, self-appointed guardians of truth that they are.
I’ve been writing and speaking about this question for a while, most recently in Newsweek, because it has stirred internecine conflict on the Right between individuals who think social media companies should remain free from policy intervention (ignoring, of course, that they thrive as a result of Section 230, itself a government policy) and those, like me, who believe that these corporations have accumulated a troubling amount of power over our lives, data, behavior, and the free market.
What the Debate Is Really About
This dispute was on display recently, when my Newsweek piece was countered as a “right-wing attack on Sec. 230” by Patrick Hedger, a research fellow at the Competitive Enterprise Institute, a libertarian think tank.
Hedger’s rebuttal parses my opinion piece on the technical merits of how I’ve described the liability shield given to the tech industry by Congress. But Hedger fails to address the key points of my argument: the societal and speech ramifications of private corporations acting to censor protest content and, more broadly, the fact that the tech industry needs more accountability in exchange for the government protection it receives.
The argument advanced by proponents of Section 230 as it relates to the First Amendment grows louder as concerns about tech continue to grow. The short version generally distills to this: these companies have First Amendment rights to remove whatever content they want. Go pound sand, you ignorant fool. (If you think I’m exaggerating about that last bit, see this rant from Mike Masnick of the tech industry blog, TechDirt.)
It’s a straw man for the conversation many of us are actually trying to have, which is one about the consequences of the growing power of the tech industry and whether or not our federal policy toward the industry should be reformed as a result. It is important, not just as it relates to Section 230, but also as it relates to Big Tech and individual liberty, data privacy, and market access.
In other words, the conversation I am attempting to have is not one that goes back and forth about the merits of policy minutiae as it is currently written. It’s about what should be done. And a rebuttal to that requires a counterargument, rather than a repeated exegesis about how Section 230—a statute whose broad interpretation has been stretched “outlandishly”—is currently interpreted.
And when it comes to Section 230 specifically, it’s a conversation worth having. The provision, snuck in the back door of the Communications Decency Act of 1996, was never actually debated by the Congress that passed it—in part because the concept of “being online” was still so nascent and social media did not exist in its current form. Its application since then largely has been determined by aggressive litigation from the tech industry, not by public debate.
Congress Has Taken Notice
But, regardless of original intent, it’s a conversation worth having because so many Members of Congress are interested in having it. Republican Senators Ted Cruz (R-Texas), Marsha Blackburn (R-Tenn.), John Kennedy (R-La.), Joni Ernst (R-Iowa), Kevin Cramer (R-N.D.), Josh Hawley (R-Mo.), Lindsay Graham (R-S.C.), Marco Rubio (R-Fla.), Representatives Louie Gohmert (R-Texas) and Paul Gosar (R-Ariz.) have all expressed interest in reexamining Section 230. Reps. Ken Buck (R-Colo.), Jody Hice (R-Ga.), and Senator Tom Cotton (R-Ark.) have all raised other concerns about Big Tech.
Libertarian Rep. Thomas Massie (R-Ky.) has thrown up a flare about “big business working very hard for big government” in apparent speculation over what Apple and Google may do with the contact-tracing technology they have developed.
The tech industry and its advocates may not think this debate should happen, but lawmakers certainly do.
So, too, do Americans across the political spectrum, 77 percent of whom told Gallup that they think Big Tech has too much power. An example I used to highlight this was Facebook’s removal of anti-lockdown protest content—content that is not illegal but based on nonbinding state government advisories.
“So what?” replies Hedger. Facebook also removes content that tells you to eat Tide pods, even though that’s not technically illegal. And that’s a good thing.
As a legal matter, the two may be the same, but as a practical matter, conflating the two disregards how Americans prize their right to assemble. Facebook has the right to remove whatever content it wants but, at least in the minds of most people, suppressing the ability of certain users to organize otherwise constitutionally protected activities is subjectively quite different from removing content suggesting one poison oneself with detergent.
There’s a reason members of Congress weighed in about removing protest content but shrugged off the Tide pods. One type of content, regardless of its relative public health wisdom, hews very closely to a sacrosanct right in America. The other is just dumb.
In a similar way, these companies, somehow now relegated to the role of arbiter of debate in the public square, are making subjective determinations about what political content is true or just “misleading,” and labeling or banning it as such. (Brendan Carr, a commissioner at the FCC, has suggested the novel approach of just letting Americans decide for themselves.)
Hedger goes on to discuss Section 230 with the binary framing that requires maintaining the law as it is, lest the internet descend into a smutty chaos of porn and extremism. Because if Facebook cannot remove protest organization content, it then also cannot remove terrorist beheading videos.
This is a false dichotomy. Mostly because few would suggest Section 230 be eliminated outright. Those who have argued for reform recognize that it is a point of leverage to compel more transparent behavior from the tech companies; a rhetorical point, rather than a literal one.
What I am suggesting, as many others have, is that there are reasonable steps Congress can take to generate both more accountability and less centralization from tech, while still maintaining the moderation that everyone deems important.
Other countries, for instance, don’t have a facsimile of a Section 230 policy but still manage to have a free and functional internet. And Congress has already amended Section 230 once, to make websites more accountable for the sex trafficking content that flourishes online. Last time I checked, the internet was still working. Albeit, with less sex trafficking. Most of us think that’s a good thing.
The conversations around Big Tech tend to take on the flavor of a national theology, and tech innovators the status of demigods.
A more realistic conversation would recognize Section 230 for what it is: a congressionally authorized subsidy for the tech industry (Eric Goldman, whom Hedger cites in his own defense, acknowledges as much while arguing that the subsidy should be kept). It would also recognize the tech industry for what it is: a collection of massive companies with unprecedented amounts of power, now being investigated by the federal government and 50 state attorneys general as monopolies.
And like other industry subsidies, Section 230 deserves reevaluation and debate as part of a larger conversation about the growing power of the tech industry over behavior, speech, individual data, privacy, market access—and even elections.
Section 230 reform may not be the silver bullet to any of these concerns, but it’s certainly a part. And while Hedger may not acknowledge that any of the above concerns are real, increasingly, a plurality of Americans do. And so does Congress.