Comment A flawed consultation into Section 230 – America's safety blanket that shields online platforms like Google and Facebook – has already devolved into a mess dangerously reminiscent of the net neutrality debate.
“The censorship of conservative voices is a well known fact to all people,” reads just one comment of hundreds submitted to telco regulator the Federal Communications Commission (FCC).
It goes on: “Many prominent conservative voice [sic] have already been silenced. If giant corporations, who’s [sic] product is the new town square, are allowed to increase their censorship then conservatism will die out due to being smothered.”
Section 230 of the Communications Decency Act is the slice of US law under review, and it has nothing to do with censorship. But that is one of the more reasoned responses to a public comment period that has become yet another proxy during election season for America’s endless, and often manufactured, culture wars. Section 230, give or take some caveats, protects organizations from being sued into oblivion for what their users share online; it makes sure Google, Facebook, Twitter, etc, largely can't be held responsible for netizen-generated content, and is a cornerstone of the internet as we know it today.
“I am a survivor of the Virginia Tech shooting. I have never thought of buying a gun my entire life,” reads another comment submitted to, let’s not forget, a review of a 26-word piece of telecoms legislation.
“Yet I see that that right is under attack so I would like to have my perspective heard on the issue online. I can’t, however, because Twitter has banned me from doing so. Yet I have to watch David Hogg on CNN as though he’s some kind of moral authority. It makes me absolutely sick. What these companies are being allowed to do to this country via this law’s continued existence is absolutely sickening.”
There are literally hundreds of others like this and that’s with mainstream news outlets yet to draw attention to the comment period. If, like net neutrality, it becomes the focus of a proxy battle – the rallying cry for that day – then we expect to see hundreds of thousands of angry and pointless comments. Many of them under false names; many the result of automated campaigns.
Genesis of a mess
How has this happened? A big clue comes in one comment, dozens of versions of which have been submitted: “I support our president looking into this. The censorship is rampid [sic] and this change would start the remedy to free speech.”
That’s right, Donald Trump’s particular brand of governing by invective is behind much of the current nonsense, although in this case, he only added fuel to an already burning fire. The issue of Section 230 has been falsely conflated in recent months by politicians on both sides of the aisle keen to show how they will take on Big Tech. Democratic presidential nominee Joe Biden has argued the law should be scrapped altogether.
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Such is the level of misunderstanding that the two authors of the original law have been doing the rounds explaining what it is and what it does – but to seemingly little avail. As well as this public comment period, there are at least three pieces of proposed legislation aimed at changing Section 230, and many more Congressional statements, only a small percentage of which reflect the law’s reality.
But while those issues could (probably) have been dealt with inside Congress, it all bets were off when President Trump got involved. Irritated with some of his tweets being flagged as containing misleading information, Trump decided to further conflate Section 230 and insist that it be reviewed to ensure that voices – his, mainly – weren’t being constrained.
“We’re here today to defend free speech from one of the greatest dangers it has faced in American history,” he said with typical hyperbole while signing an executive order in May on the topic in the Oval Office.
“Currently social media giants like Twitter receive an unprecedented liability shield based on the theory that they're a neutral platform – which they are not – not an editor with a viewpoint," the president went on.
The order required the Department of Commerce to send a request to the FCC to review Section 230. But there was no need for the FCC to act, and in fact many experts including the FCC’s own commissioners urged FCC chair Ajit Pai not to take it up.
The order was nonsensical, law professor at Santa Clara University Eric Goldman told The Register; no more than "political theater."
FCC Commissioner Jessica Rosenworcel put out a statement that read: "The FCC shouldn’t take this bait. While social media can be frustrating, turning this agency into the President's speech police is not the answer. If we honor the Constitution, we will reject this petition immediately.”
Another commissioner, Geoffrey Starks, will have a virtual conversation with one of the authors of Section 230 – Senator Ron Wyden (D-OR) – organized by the Center for Democracy and Technology next week in which the description reads: “The speakers will discuss President Trump’s social media Executive Order, including the Order’s unprecedented call for the FCC to claim jurisdiction over and adopt new rules governing social media services.”
Everyone felt it was a bad idea of the FCC to open up a consultation on Section 230, especially since the FCC most definitely should not be involved in deciding new rules around the law. There is, for example, no mention of content neutrality in Section 230, despite the president’s claims, and so to create neutrality rules would require the FCC to create new law: something that is very firmly Congress’ job. The president is, of course, not able to direct Congress to do something.
The biggest question at this point, when the FCC consultation already looks like a dumpster fire is: does it matter? Isn’t this just one incendiary device let off inside the federal government as part of a war of attrition during election season?
And the truth is that it does matter. The net neutrality debate – if it is possible to call if that – has become so calcified in partisan hatred that the very serious underlying issue of ensuring that internet access and access to information cannot be controlled in future by corporations with vested interests has been lost. It is currently impossible to imagine a smart solution to a real technological problem.
Likewise, Section 230 – or, more accurately, the issue of how tech giants likes Facebook, Google and so on – have grown enormously powerful while retaining little or no legal liability for the lies and misinformation spread over their platforms – is a serious threat to the proper function of democracy within the United States.
When there is no check on truth and where lies are published and amplified without any recourse, it is a very dangerous path. But if the issue is somehow turned into yet another partisan debate where two sides are drawn, and everyone must fit into one side of another, there is little or no hope of the issue being resolved properly through reasoned policy debate.
What’s more – just like the net neutrality brouhaha – other companies have started using the FUD to push their own corporate goals. Rather than simply cut down the current consultation as flawed and worthless, this week AT&T saw an opportunity to weaken its competitors – Google and friends – and so strengthen itself.
In a blog post, AT&T’s VP of Regulatory and State External Affairs, Joan Marsh, wrote that the giant phone company would “join the growing consensus of voices concluding that online platforms should be more accountable for, and more transparent about, the decisions they control that fundamentally shape how we communicate, learn, shop, and are informed and entertained.”
AT&T knows full well what Section 230 does and does not do but it has become politically convenient to pretend otherwise. “We argue first that the dominant online platforms owe the public greater transparency about the choices made on their platforms," it said.
"We also argue that Section 230 immunity should be modified to reduce the gross disparities in legal treatment that have emerged between the dominant online platforms and the traditional purveyors of third-party content, such as book publishers, newspapers, or radio and television businesses. There is no longer any reason that the nation’s most powerful online platforms should enjoy legal immunities unavailable to similarly-situated traditional companies.”
Just like net neutrality, the current “debate” over Section 230 will serve only to misinform people about the issue and construct an alternative version of reality that is molded more by people’s political leanings than the actual facts. It is one more step in the wrong direction.
It is also telling that the FCC, despite its now-extensive experience in being swamped with unhelpful and irrelevant comments that only serve to confuse and clutter its policy processes, has yet to do anything to rein this in. It has been a serious dereliction of duty on the watchdog's part to not overhaul its system to aid reasoned debate.
Instead the telecoms regulator is content to ride the wave of furious protest and cherry pick whatever it wants and use that to form policy. In other words, the complete opposite of a well-functioning policy process. It will lead to poor decisions and damaging rules.
Or, as “Mark Zuckerberg - Facebook” said in his comment this week: “People on Facebook can and do call me every name in the book, including wishing sickness and death upon my children and I simply because I’m a Trump supporter and will homeschool my children when they get school age. If I try to report these people, they always come back and says there was no violation that occurred. The second I try to retaliate I get put on a 30 day ban.” ®