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So, where does Silicon Valley stand on S.230? Zuck wants 'industry best practices', Pichai demurs, Dorsey urges more Bluesky thinking

House panel to quiz web giant CEOs this week. Expect a degree of deja vu

The heads of Facebook, Google, and Twitter will be questioned in Congress on Thursday by politicians probing "social media's role in promoting extremism and misinformation."

In written testimony submitted ahead of this week's hearing, Facebook CEO Mark Zuckerberg argued the legal shield protecting online platforms from being sued for their users’ content – Section 230 of America's Communications Decency Act – should be contingent on those platforms following an as-yet unproduced set of industry “best practices.”

“I believe that Section 230 would benefit from thoughtful changes to make it work better for people,” he wrote, referring to a small section in the Telecommunications Act of 1996 that provides the legal protections.

In his pre-prepared statement [PDF] to the House Energy and Commerce subcommittee, he goes on: “We believe Congress should consider making platforms’ intermediary liability protection for certain types of unlawful content conditional on companies’ ability to meet best practices to combat the spread of this content. Instead of being granted immunity, platforms should be required to demonstrate that they have systems in place for identifying unlawful content and removing it.”

Under this concept, he argues, “platforms should not be held liable if a particular piece of content evades its detection – that would be impractical for platforms with billions of posts per day – but they should be required to have adequate systems in place to address unlawful content.”

As to what constitutes an “adequate system,” that would depend on the platform size and would be “set by a third-party.”

While Zuckerberg’s proposal remains conceptual, it represents a step toward concrete action on a topic that has, for several years, elicited a lot of hand-wringing and argument but few workable solutions. It is also a proposal that wouldn’t require lawmakers to attempt to write legislation that covered all future eventualities.

There are numerous proposed new bills for reforming Section 230 – including a number of ideas for removing the legal shield altogether – but none have gained much acceptance by Congress or the tech industry.

What is noteworthy about Zuckerberg’s suggestion, however, is that it makes the shield contingent on company action; something that the tech industry has argued furiously against for over a decade, claiming that it would require to filter huge quantities of content to avoid serious legal jeopardy. That doesn’t mean to say that anyone else is on board with Facebook’s approach.

And now everyone else

One of the two legislators responsible for Section 230 in the first place, Senator Ron Wyden (D-OR), put out a statement on Wednesday slamming the idea of industry best practices as the legislative center for content moderation.

“Mark Zuckerberg knows that rolling back Section 230 will cement Facebook's position as the dominant social media company and make it vastly harder for new startups to challenge his cash cow,” Wyden said. “Everyone working to address real issues online should be deeply wary about Mark Zuckerberg's proposals for new regulations.”

He also noted that Facebook broke with the tech industry on the controversial legislative proposal to exempt specific content around sex workers from Section 230. “Facebook endorsed SESTA-FOSTA,” Wyden says, “which by all accounts has caused an outbreak of violence against sex workers, made it harder for LGBTQ+ communities to exist online, and has done virtually nothing to stop sex trafficking.”

Wyden also noted that Congress itself was making a mistake in trying to devise new rules that will impact everyone on the internet by only talking to the big tech giants. “Zuckerberg's testimony is another reminder that Congress can't craft smart tech policy if it keeps holding hearings featuring the same three big tech CEOs. Pretending the internet is only Facebook, Twitter and Google will lead to laws that ensure that's the result.”

As for Google and Twitter, neither of them are keen on Facebook’s proposal, either.

In his prepared statement [PDF], Sundar Pichai, CEO of Google and its parent Alphabet, discussed Section 230 in the exact same way Google has done for years: repeatedly noting how important it is, and warning against making changes before offering vague assurances that Google will deal with concerns.

“Our ability to provide access to a wide range of information and viewpoints, while also being able to remove harmful content like misinformation, is made possible because of legal frameworks like Section 230 of the Communications Decency Act,” he stated. “Section 230 is foundational to the open web… Without Section 230, platforms would either over-filter content or… Section 230 allows companies to take decisive action on harmful misinformation…”

Ch.. ch.. ch.. chan... No!

As for changes to it, Pichai said Google is “concerned that many recent proposals to change Section 230… would have unintended consequences…” Instead, he asserted, “we might better achieve our shared objectives by focusing on ensuring transparent, fair, and effective processes for addressing harmful content and behavior. Solutions might include developing content policies that are clear and accessible, notifying people when their content is removed and giving them ways to appeal content decisions, and sharing how systems designed for addressing harmful content are working over time.”

It is the same position Google had put forward for years, indicating a failure of lawmakers to make progress, and highlighting Wyden’s criticism – that pulling in the same three tech CEOs every year is achieving little.

That point was also reinforced by the Fight for the Future internet activist group which on Wednesday morning announced a press conference ahead of tomorrow’s hearing that will feature a range of speakers who “will all speak to why gutting Section 230 won’t be the solution to the problems discussed at the big tech CEO hearing.”

The press conference was arranged, the organizers said, “in the hopes we can bring a more thoughtful perspective beyond lawmakers yelling at CEOs who then say things like ‘my team will get back to you on that’.”

It’s a harsh but entirely valid criticism: in The Reg's coverage of past hearings we have often found ourselves despairing out loud at the pointless grandstanding, lack of knowledge, and worthless questions thrown at tech execs that result in meaningless aphorisms and promises to consider the question and provide more information.

Groundhog Day

But that is what we will have yet again: Zuckerberg, Pichai, and Dorsey in front of the cameras – presumably because having tech CEOs in front of lawmakers is a comparative ratings winner for Congress and gives lawmakers the chance to be seen and heard outside the Washington DC bubble.

As for Dorsey, the increasingly hermetic Twitter leader does not even mention Section 230 in his statement [PDF]. Instead, he talks about “doing more” and provides a list of things that Twitter is doing. Where his testimony may raises some eyebrows, however, is when he suggests providing greater transparency around the algorithms used by the tech giants to decide what content to show users and what to limit.

“We recognize that we can do more to provide algorithmic transparency, fair machine learning, and controls that empower people,” his statement said. “The machine learning teams at Twitter are studying techniques and developing a roadmap to ensure our present and future algorithmic models uphold a high standard when it comes to transparency and fairness.”

He flags up Twitter effort to “address harms associated with misinformation” by pointing to an initiative called Bluesky. “Twitter is also funding Bluesky, an independent team of open source architects, engineers, and designers, to develop open and decentralized standards for social media,” he will say. “This team has already created an initial review of the ecosystem around protocols for social media to aid this effort. Bluesky will eventually allow Twitter and other companies to contribute to and access open recommendation algorithms that promote healthy conversation and ultimately provide individuals greater choice.”

You can see the BlueSky “initial review” here: it’s basically a lengthy rundown of protocols used by Twitter and a technical explanation of how they fit together. It will be incomprehensible to lawmakers and boring to everyone else. Which may be the point.

Big Tech clearly feels that the best way to deal with Congress’ insistence that Something Be Done is to just keep turning up, produce long lists of what they are doing – no matter how tangentially related (we’re investing in journalism, claims Google) – and insist that they are best placed to figure it out. ®

PS: Facebook just emitted a well-time announcement on how it is "taking action against hackers in China." Said action involves disabling Chinese cyber-spies' "ability to use their infrastructure to abuse our platform, distribute malware and hack people’s accounts across the internet."

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