The Precarious Politics of Reigning in Silicon Valley

As our attention turned to concerns about disinformation, hate speech, and data security after the 2016 election, it became clear that the big cyber policy on deck was going to be a fight about Section 230 of the Communications Decency Act (1996).  For some detailed discussion about this legislation, see posts here, here, and here; but in nutshell, Section 230 shields online platforms against liability for potential harm that may result from the conduct of its users.  It is occasionally and improperly associated with copyright infringement, from which platforms are largely shielded by Section 512 of the DMCA (1998). 

Although 230 was never intended to provide blanket immunity for all sites hosting any kind of user-generated content, most courts over the 24 years since the law was adopted have interpreted it as a blanket immunity for all sites hosting any kind of user-generated content.  This includes content that may be posted for the express purpose of causing harm like harassment, defamation, revenge porn, fraud, or disinformation.  230 is the statutory reason why site owners respond with a shrug or, at best, a feeble explanation for hosting material that goes beyond mere offense, as we have seen its power to alter truth itself.  If you were mystified, for instance, by Zuckerberg’s sphinx-like reasoning that Facebook would maintain Holocaust denial pages because they are merely “misinformation and opinion” rather than “hate speech,” that was just one manifestation of the ideological flaw, which helped write Section 230 two decades ago.   

“We were naïve. We were naïve in a way that is even hard to recapture. We all thought that for people to be able to publish what they want would so enhance democracy and so inspire humanity, that it would lead to kind of flowering of creativity and emergence of a kind of a collective discovery of truth.”

Those are the words of former FCC Chairman Reed Hunt lately expressing regret for the adoption of Section 230, clearly identifying the erroneous underlying premise, which many critics now refer to as tech-utopianism.  And while it is somewhat encouraging to finally see a greater appetite for holding platforms accountable for some of their ill-effects, this mood change is anything but clearly definable.  Instead, we hear cacophony of disparate—even competing—rationales for reigning in Big Tech, and if this chaos cannot manifest as rational policy, Big Tech may win the status quo, which they spare no expense trying to maintain.   

For example, voices as incompatible as Vice-President Joe Biden and Senator Ted Cruz have both raised the specter of abolishing Section 230, but for very different reasons.  Biden and others see the liability shield as encouraging a platform like Facebook to continue hosting false information (e.g. Holocaust denial), while Cruz and other Republicans complain that social platforms are biased against conservatives.  But good luck trying to reckon with the devil in those details.

Would Biden include headlines or stories from left-leaning organizations that are inaccurate?  Would Cruz consider social media platforms removing Alex Jones, or the hosting providers dropping The Daily Stormer as examples of anti-conservative bias these days?  It becomes easy to imagine how a pragmatic and sober debate about Section 230 can get lost amid the inherent tribalism implied by just those two voices alone.

From a very different sector, David McCabe reports for the New York Times that a “motley” group of corporations, including Disney, IBM, and Marriott, are gunning for Section 230. “The companies’ motivations vary somewhat,” writes McCabe.  “Hollywood is concerned about copyright abuse, especially abroad, while Marriott would like to make it harder for Airbnb to fight local hotel laws. IBM wants consumer online services to be more responsible for the content on their sites.”

As prefaced above, note that even The New York Times will erroneously include copyright in a conversation about Section 230, though in fairness, the underlying principle—namely that no platform should ever be responsible for material published by users—is fundamentally the same in 230 as the DMCA’s 512.  Still, let us assume that especially because the Times used “Mickey Mouse” in the headline, this story will be interpreted by many as “Copyright maximalist Walt Disney Company wants to break the internet again,” or something to that effect.  And viola!  We are no longer having a conversation about platform responsibility. 

In a similar vein, the Center for Democracy and Technology published an article on its site criticizing a proposal introduced by Sen. Graham to combat child sexually abusive material online; and the article and associated tweet exploits distrust for both Graham and Attorney General Barr as reasons to fear the proposal itself.  Sure, I personally think Sen. Graham is the most prominent wuss in America today; and Bill Barr is batshit crazy, spluttering his views that people without religion lack moral judgment, but …

I don’t trust the folks at CDT either because they are ideologues too—OG tech-utopians who just happen to receive significant funding from Google.  (That, and I am very much opposed to child sexually abusive material.) So, whether the harm that needs addressing is child exploitation, revenge porn, online harassment, or mass disinformation campaigns, if we want to cope with any of these still somewhat novel challenges, we just might have to entertain the possibility that a sound policy proposal will come from some party we do not like in a different political context.

The subtle irony in this last example, of course, is that the folks at CDT would probably never entertain the notion that blanket platform immunity has been a major catalyst to creating the alternate realities that people like Graham and Barr now occupy.  That’s not a partisan view—Senator Wyden is probably Big Tech’s greatest ally in Congress, and I unequivocally called him a liar with regard to the CASE Act—it’s the view of someone who, like many Americans, is weary of policy discussions in which outright bullshit is given equal weight to evidence-based theory and practice.  And with respect to Reed Hunt’s observation, this was an inevitable consequence of giving every citizen a megaphone; but platform immunity like Section 230 is the reason Zuckerberg will call outright bullshit like Holocaust denial an “opinion.”  

© 2020, David Newhoff. All rights reserved.

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