Analysis The simmering debate over legal immunity given to online platforms like Facebook and Google in America has grown hotter with a new report from the Department of Justice outlining changes it hopes to make to the rules.
In addition, just today, Senator Josh Hawley (R-MO) has outlined his planned legislation for changes to Section 230 of the Communications Decency Act (CDA) – which provides the aforementioned blanket legal immunity – and an FCC commissioner gave a speech outlining why the regulator should ignore a demand from the President that it develop its own rules for online immunity. Let battle commence.
The Department of Justice report [PDF] comes at a time when both 2020 presidential candidates – not to mention numerous other lawmakers and policy wonks – have made it plain they believe there needs to be changes to Section 230.
For those not in the know, Section 230 shields internet platforms, such as Facebook and Twitter, from legal liability for stuff their users get up to, plus or minus some caveats. It largely allows websites and apps to avoid responsibility for and repercussions from how their tech is used, and focus instead on expanding it (and slapping advertising on it, natch). It is a cornerstone of today's Silicon Valley.
Democratic White House hopeful Joe Biden has called for it to be scrapped entirely and President Donald Trump has issued an executive order on the topic, largely in response to Twitter highlighting falsehoods in his own tweets. Meanwhile, everyone from law professors to tech giants to policymakers have warned that any changes would need careful deliberation.
The Justice department's report title makes it plain where it is headed: “Section 230 — Nurturing Innovation or Fostering Unaccountability?” It essence, it proposes three significant changes to the section. First, protection can be withdrawn from a platform altogether if the department deems that platform to be a “Bad Samaritan.”
“It makes little sense to immunize from civil liability an online platform that purposefully facilitates or solicits third-party content or activity that would violate federal criminal law,” the report argues. Presumably the target in this case is a website like Backpage, which was repeatedly warned about sex trafficking ads on its site and refused to shut down that rather profitable part of its site.
The DoJ also proposes a carve out for egregious content, and names three categories: child abuse, terrorism, and cyber-stalking. Any platforms hosting that material will be legally liable for content if it doesn’t take it down when notified.
And now the hard part
And then comes the part that everyone has been arguing over for years: a removal of immunity “where a platform had actual knowledge or notice that the third party content at issue violated federal criminal law or where the platform was provided with a court judgment that content is unlawful in any respect.”
These are thorny and complex issues that online platforms can be expected to argue will prove impossible to implement, given the sheer size and scale of the content that is posted by their users. But that fight is coming, and that argument is unlikely to hold much water for much longer.
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For decades – it was introduced in 1996 – Section 230 was treated as sacrosanct, and even the slightest proposed change met a wall of complaints from the tech industry that argued, with genuine sincerity, that it would mean the end of the internet as we know it.
But with online empires like Facebook, Twitter, and Google becoming a fundamental source of information for modern society, the blanket legal protection offered by the section has come under increasing pressure. The dam was broken when, following a lengthy showdown between Senators and online classifieds company Backpage, the section was adjusted for the first time to exempt sex trafficking from legal protection.
The truth, however, is that Congress introduced the section, complete with ambiguities, and it is going to have to be Congress that changes it. Law courts have taken a broad interpretation of the section and there is now so much case law that the changes that a majority of people want to see will need a fundamental change in that law.
Likewise, the President’s recent effort to push his own changes are going nowhere and, unfortunately, are best seen as a tantrum rather than a genuine effort to shift the debate. Trump’s executive order will require the relevant part of the Department of Commerce, the National Telecommunications and Information Administration (NTIA), to write to the FCC and FTC and ask them to consider adding rules around Section 230.
Creature of Congress
As one FCC commissioner, Geoffrey Sparks, made clear in a speech [PDF] on Wednesday, however, the FCC as an autonomous organization is not under any obligation to take up the NTIA’s suggestion, and he argues persuasively why it should not.
“I am skeptical that there’s any role for the Commission here,” he said. “As a ‘creature of Congress,’ the FCC only has the authority given to it by statute. We get the power to act when Congress expressly tells us to do something or when it leaves an interpretive ‘gap’ for the FCC to fill. Neither has happened here. On its face, the statute does not direct the FCC – or anyone – to make rules.”
He’s right. And he’s also clear about what he thinks was behind the executive order in the first place: the President’s thin skin and re-election chances. “Whatever you think of its merits, the executive order represents the President’s clear intention to influence how social media companies operate at a time when their decisions are heavily implicated in his own electoral future,” said Sparks.
Later he noted: “The broader debate about Section 230 long predates President Trump’s conflict with Twitter, and there are many smart people who believe the law should be updated. That the President might find it more expedient to influence a five-member Commission than a 538-member Congress is not a sufficient reason, much less a good one, to circumvent the constitutional function of our democratically elected representatives.”
Which leads to those elected representatives. There are a multitude of different ideas and plans for what to do with Section 230, and the latest comes in the form of Senator Josh Hawley (R-MO)’s proposed Ending Support for Internet Censorship Act, unveiled today.
Haw, haw, Hawley
In it, Hawley takes a different approach to the one suggested by the DoJ, and argues instead that online platforms should be required to have an external audit of their “algorithms and content-removal practices” to make sure that they are “politically neutral.” If they don’t submit to the audit, they would be stripped of their legal immunity.
The legislation would apply to any platform with more than 30 million US users a month and annual income of over $1.5bn. They would be required to publish all of their content moderation policies and pledge to act in “good faith” with those policies. Users could sue for $5,000 if they felt anything that happened to their posts did not fit within those policies.
The bill has picked up three co-sponsoring senators, all Republicans: Marco Rubio (R-FL), Mike Braun (R-IN) and Tom Cotton (R-AR). And that’s significant because, like pretty much everything in Congress, the proposed legislation is not really about improving the law, as pretty much everyone agrees needs to happen in this case, but to score partisan political points.
The political issue around Section 230 isn’t so much the illegal content that online platforms frequently host, albeit often for short periods of time, but the misleading and false information, often willful misinformation, that has become a part of the modern political campaign.
That misinformation has become so egregious these days that Twitter and now Google have felt obliged to act, with Twitter placing warnings on the President’s own tweets. Facebook has insisted that it is an issue of free speech, and it will not touch such content (even when it clearly breaks its own policies for other users) and the antisocial network has faced a growing barrage of criticism for that.
The real issue
The problem is that while media such as newspapers have always published contentious information, it has typically been produced by professionals who work for those outlets or publications, and are held accountable to standards of objectivity.
People tend to get very angry when they produce their own stuff and post it themselves on a page that features their own face and it's named after them, only to find someone else made a judgement call and said it is false and needs to be taken down or flagged as misleading.
For the vast majority of folks, misleading people is not a key component of the issue, and very few have a public profile so large that their words can influence real events. In any case, those aren’t the people who will get to decide what changes need to be made to Section 230.
As happens all too often in US politics, the very people who are the cause of most of the problems are the only ones in the position to fix it. ®