Tech
The Fight Over Section 230—and the Internet as We Know It
Reading in data-saving mode. Read full article from Wired website.
Published 8/13/2019 2:18:57 PM
The Fight Over Section 230—and the Internet as We Know It
Republicans who support Hawley’s act claim it’s the lesser of two evils.
“I’m a conservative. I don’t want Washington running my life, but I sure as hell don’t want Silicon Valley running my life,” Representative Matt Gaetz (R-Florida) told WIRED. Last year, Gaetz claimed to be “shadow banned” by Twitter, after a Vice report found a handful of accounts for conservative figures weren’t surfacing in some search results. At the time, Twitter told WIRED that this was an error, and not based on the political content of tweets. But the incident didn’t improve tech companies’ standing with Gaetz, who already had been a vocal critic of Section 230 in hearings on the Hill.
Gaetz says he has semi-frequent cell calls with the president, and says he’s discussed this issue with senior Trump officials, including “what we can do in the absence of legislation.” While Gaetz won’t divulge the details of those private talks, he supports reining in tech companies.
“There is no First Amendment right for online platforms to have a unique shield from liability that is not enjoyed by newspapers, magazines, or television stations,” Gaetz told WIRED. “That is an extra-constitutional privilege that is statutory in nature, enshrined in The Communications Decency Act.” (Newspapers, magazines, and TV stations can enjoy Section 230 protections, too, for example if their websites have comments sections for users.)
If Congress doesn’t move the needle on Section 230 reform, the president has indicated he’s willing to take up the torch. Late last week, Politico was first to report that the White House is in the early stages of drafting an executive order to deal with what it claims is anti-conservative bias in Silicon Valley. Similar to Hawley's bill, it would have government agencies oversee how social media companies moderate their sites, according to a summary of a draft order obtained by CNN.
It must be noted that there’s scantevidence that social media companies are systematically suppressing conservative content because of users' political views. In fact, social media analytics companies like NewsWhip routinely find outlets like Fox News and Breitbart in the top 10 or 20 publishers on sites like Facebook. But persnickety facts don’t really matter in today’s Washington.
An Often Misunderstood Law
Senator Wyden helped pen Section 230 while serving in the House back in the ’90s, along with conservative former California congressperson Chris Cox. Section 230 wasn’t crafted to shield companies for the heck of it. The fear was that if companies could be held responsible for all the content its users posted simply because they moderated some of it—as had happened to Prodigy in 1995—they wouldn’t moderate anything at all. Or so the argument went.
Since then, Section 230 has become sacrosanct in the eyes of Silicon Valley executives and free speech advocates. It is also frequently misunderstood or misportrayed, including by lawmakers.
§
Toward the tail end of a sparsely attended hearing of the House Judiciary Committee on Tuesday, congressman John Rutherford (R-Florida) turned to the three witnesses before him—representatives of Facebook, Google, and Twitter—and asked a question that left them speechless. Congress, he explained, has already amended Section 230, the law that protects tech platforms from liability for what people post, by creating an exception for content related to sex trafficking.
Given that, Rutherford asked the group, “Do you see any other areas where those kinds of exceptions to the protections under 230 should be examined?”
Several seconds of silence followed. Facebook’s Monika Bickert stared blankly across the dais. YouTube’s Juniper Downs managed an uncomfortable, closed-lip grin. Twitter’s Nick Pickles avoided eye contact by scribbling who knows what on his notepad.
Rutherford continued on, offering some options. “How about sedition?” he asked. Still, nothing but the sound of keyboards clacking filled the wood-paneled room.
It was not the first time Republicans on the committee questioned the merits of Section 230, which was passed as part of the Communications Decency Act in 1996. Throughout the hours-long hearing on social media moderation practices, during which the three tech companies were repeatedly accused of censoring conservative voices, Republican lawmakers made one thing clear: Decades ago, Congress gave tech companies sweeping power to decide what does and doesn’t belong on their platforms, and now they want that power back. But according to legal scholars who study Section 230, the arguments being lodged by Congress are based on a deeply flawed understanding of how that law works in the first place.
In his questions to the panel, congressman Matt Gaetz (R-Florida) questioned whether tech companies can claim to be immune from liability for other people's posts under Section 230 and also claim the First Amendment right to restrict content on their platforms, just as publishers can. "When you avail yourself to the protections of Section 230, do you necessarily surrender your rights to be a publisher or speaker?" Gaetz asked. "The way I read that statute now, it’s pretty binary. It says you have to be one or the other."
That interpretation is flat-out wrong, says Eric Goldman, a leading Section 230 scholar at Santa Clara University School of Law. "That’s such a gross misreading of Section 230 it breaks my heart," Goldman says. The reason Section 230 came into existence in the first place, he says, was to encourage tech companies in the early days of the web to remove objectionable content, with the promise that they wouldn't be held liable if they happened to screw up in the process.
"The concern was if Section 230 didn't protect those editorial decisions, services would choose not to do that socially valuable work," Goldman says.
