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Enlarge / Donald Trump speaks from the White House on Thanksgiving Day.
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President Donald Trump has long been an outspoken foe of big technology companies. And in recent months, he has focused his ire on Section 230, a pr…
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The Senate Commerce Committee met for a hearing Wednesday meant to probe some of the most seemingly intractable tech questions of our time: is the liability shield granted to tech firms under Section 230 of the Communications Decency Act helpful or harmful, and does it need amending?
Section 230 is a little slice of law with enormously broad implications for the entire Internet and all the communication we do online. At a basic level, it means that if you use an Internet service such as Facebook or YouTube to say something obscene or unlawful, then you, not the Internet service, are the one responsible for having said the thing. The Internet service, meanwhile, has legal immunity from whatever you said. The law also allows space for Internet services to moderate user content how they wish—heavily, lightly, or not at all.
Since Section 230 became law in 1996, the Internet has scaled up from something that perhaps 15 percent of US households could access to something that almost every teenager and adult has in their pocket. Those questions of scale and ubiquity have changed our media and communications landscape, and both Democrats and Republicans alike have questioned what Section 230 should look like going forward. What we do with the law—and where we go from here—is a matter of major import not just for big social media firms such as Facebook, Google, and Twitter, but for the future of every other platform from Reddit to Ars to your favorite cooking blog—and every nascent site, app, and platform yet to come.
Unfortunately, instead of dealing substantively with any of those questions, Wednesday’s hearing began as an act of political theater divorced from reality, and it got worse from there.
Following the script
The hearing featured testimony from three of tech’s biggest names: Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey, and Google CEO Sundar Pichai, who all showed up (remotely) to the hearing after the committee issued them subpoenas earlier this month. To a man, their opening remarks (Dorsey PDF, Pichai PDF, Zuckerberg PDF) went exactly as you would expect. Each thanked the committee for holding the hearing, talked about the Internet (and their own platforms) as a force for good, and explained why Section 230 helped launch their business.
After Dorsey, Pichai, and Zuckerberg kicked off the hearing by following the script we all know so well by now, so, too, did the politicians who asked them to come.
As expected, Republican members of the committee, beginning but not ending with chairman Roger Wicker (R-Miss.), largely spent their time yelling at the three CEOs for “censoring” conservative content. According to a New York Times analysis, 85 percent of Republicans’ questions to the witnesses focused on the platforms’ alleged anti-conservative bias. This supposed suppression of conservative viewpoints has been a particularly potent rallying call among US right-wing politicians and personalities for more than a year, and it is the driving force behind Republican calls to amend or abolish Section 230.
Reality, however, does not generally bear this out. On Twitter, President Donald Trump’s is among the top 10 most highly-followed accounts, with approximately 87 million followers. Over on Facebook meanwhile, most or all of the top-10 most heavily engaged-with posts on on any given day come from conservative commentators or right-leaning websites. Both Facebook’s own commissioned audit—led by a former Republican US Senator—as well as studies by third-party groups have found absolutely no evidence that conservative voices are suppressed on the platform.
Sen. Mike Lee (R-Utah) had a pointed line of questioning that laid bare the conservative point of view by conflating any level of content moderation with “censorship.”
“You take censorship-related actions against the President, members of his administration,” and a slew of conservative media outlets and groups, Lee said. “In fact I think the trend is clear, that you almost always censor—and when I use the word ‘censor’ here, I mean block content, fact-check, or label content, or demonetize websites—of conservative, Republican, or pro-life individuals, groups, or companies.”
Appending a fact-check or “read-more” type of label to existing content, however, is not censorship—and a private company is fully permitted to do so under all current law.
Democrats, too, followed a predictable script. Theirs similarly had nothing to do with Section 230, instead focusing on the actions of their Republican colleagues. Sen. Brian Schatz (D-Hawaii) gave the most succinct summary of the Democrats’ perspective when he refused to use his allotted time for questions.
“We have to call this hearing what it is: It’s a sham,” Schatz said. “This is nonsense, and it’s not going to work this time.”
Schatz’s sentiment was echoed by several others, including Sens. Amy Klobuchar (D-Minn.), Tammy Duckworth (D-Ill.), and Richard Blumenthal (D-Conn.), all of whom called into question their colleagues’ motives for calling such a hearing less than a week before the presidential election ends. Blumenthal in particular described the hearing as an opportunity for Republican Senators to “bully and browbeat the platforms here to try to tilt them towards President Trump” between now and November.
What about Section 230, though?
Although Section 230 was mentioned as a rare afterthought, in a hearing nominally dedicated to it, it did come up. Pichai and Dorsey both cautioned the Senate to be extremely thoughtful and careful with any potential changes. Zuckerberg, however, seemed much more amenable to throwing wide the gates of reform.
“People of all political persuasions are unhappy with the status quo,” Zuckerberg noted in his written testimony. “Changing [Section 230] is a significant decision. However, I believe Congress should update the law to make sure it’s working as intended.”
It’s not surprising Facebook would be the most amenable to changing the very law that let it become the behemoth it is today. Facebook has more than 2 billion daily active users across its platforms (Facebook, Instagram, Messenger, and WhatsApp) and, as such has become the poster child for failures to moderate content at scale. Its failures to communicate clearly and update policies in a proactive, rather than reactive, way are well-documented. So, too, is itswildly inconsistent moderation of frequently deceptive content.
In short, the company seems to be flailing trying to keep up with it all, and current state, federal, and international investigations into Facebook highlight how it is certainly failing to keep anyone happy in its efforts to do so. This is not the first time Zuckerberg has indicated that he would like Congress to perhaps solve some of his problems for him. Regulation—that Facebook’s government relations team would of course helpfully co-write—would create guardrails that Facebook could point to for justifying every action or inaction it takes, without getting dragged to Capitol Hill every time.
Last year Zuckerberg wrote in a Washington Post op-ed that he would like expanded US regulation relating to harmful content, election integrity, privacy, and data portability. He echoed the call for regulation earlier this year in another op-ed, this time in the Financial Times. And in July, Facebook published a white paper saying it would be happy to “co-create” new privacy regulation hand in hand with Congress.
Obviously Congress isn’t doing anything this year, with the election deadline less than a week away, to be followed by what is likely to be an awkward and acrimonious lame duck session. But the furor over Section 230 is not going to end after November 3 no matter whose presidential term starts on January 20. Democratic candidate Joe Biden has called for abolishing Section 230 entirely, and House Speaker Nancy Pelosi (D-Calif.) indicated she is open to an overhaul of the law.