Should President Biden Revoke Section 230?

Yves here. Please welcome Steven Hill, a Silicon-Valley based journalist and former program director for the Center for Humane Technology. Hill weighs in on the debate over revoking Section 230 and concludes it would be a positive move, since Section 230 of the Communications Decency Act shield the so-called platform companies from liability that media companies bear. Why should this humble blog be liable for the comments we publish when Twitter and Faceborg aren’t, despite the fact that they are not neutral but remove content and even ban user accounts?

Hill explains that revoking Section 230 would accomplish than its fans and foes commonly claim. He argues that the major technology platforms should be regulated like utilities, be barred from selling user data unless users opt in, and be pressed to implement a monthly subscription model. This approach could also allow for other protections, like a clear stipulation that if a user or platform closes their account, the user can retrieve their data for a certain period of time. Matt Stoller long ago said that if a service is free, that means you are the product. Paying to participate solve that problem.

By Steven Hill, the former policy director for the Center for Humane Technology, a former program director and senior fellow at New America in Washington DC, a past fellow at the Berlin Social Science Center and American Academy in Berlin, and a cofounder of FairVote in Washington DC. He is the author of seven books of political economy (including Raw Deal: How the Uber Economy and Runaway Capitalism Are Screwing American Workers and The Startup Illusion: How the Internet Economy Threatens Our Welfare. His op-eds, articles and media interviews have appeared in the New York Times, Washington Post, Wall Street Journal, Financial Times, The Atlantic, Wired, Bloomberg, Fortune, Forbes, Guardian, The Nation, Le Monde, Die Zeit, CNN, BBC and many others

The beautiful dream of an open and free internet, serving as a global agora of unlimited free speech to provide for more democratic participation, has crashed and burned one more time. The mob attack on the US Capitol was incited and planned over Facebook, Twitter, YouTube and other digital media platforms, with a tragic nudge from the president of the United States. The gripping images of a ransacking mob, gunshots and Congress members cowering on the floor of the House of Representatives is a warning to us all.

How did we arrive here?

Since the birth of the Big Tech media platforms 15 years ago — let’s drop the friendly-sounding misnomer of “social” media — democracies around the world have been subjected to a grand experiment:  can a nation’s news and information infrastructure, the lifeblood of any democracy, be dependent on digital technologies that allow a global free speech zone of unlimited audience size, combined with algorithmic (non-human) curation of massive volumes of mis/disinformation, that can be spread with unprecedented ease and reach?

The evidence has become frighteningly clear that this experiment has veered off course, like a Frankenstein monster marauding across the landscape.

Facebook is no longer simply a “social networking” website – it is the largest media giant in the history of the world, a combination publisher and broadcaster with approximately 2.6 billion regular users, plus billions more on the Facebook-owned WhatsApp and Instagram. A mere 100 pieces of COVID-19 misinformation on Facebook were shared 1.7 million times and had 117 million views – far more daily viewers than the New York Times, Washington Post, Wall Street Journal, Fox News, ABC and CNN combined.

The FacebookGoogleTwitter media giants have been mis-used frequently by bad political operatives for disinformation campaigns in over 70 countries to undermine elections, even helping elect a quasi-dictator in the Philippines; and to widely livestream child abusers, pornographers and the Christchurch mass murderer of Muslims in New Zealand. How can we unite to take action on climate change when a majority of YouTube climate change videos denies the science, and 70% of what YouTube’s two billion users watch comes from its sensation-saturated recommendation algorithms?

Traditional media are subject to certain laws and regulations, including a degree of liability over what they push into the world. While there is much to criticize about mainstream media and corporate broadcasters, at least they use humans to curate the news, and pick and choose what’s in and out of the newstream. That results in a degree of accountability, including potentially libel lawsuits and other forms of Madisonian-like checks and balances.

But with Big Tech media, it’s more like the wild wild West, with no sheriff. FacebookGoogleTwitter use robot algorithm curators that are on automatic pilot, much like killer drones for which no human bears responsibility or liability. That’s dangerous in a democracy.

So non-human curation, when combined with unlimited audience size and frictionless amplification, has completely failed as a foundation for a democracy’s media infrastructure.  It’s time to hit reset in a major way, not only to save our democracy, but also to provide the best chance to redesign these digital media technologies so that we retain the promise and decrease the dangers.

To Section 230 or To Not Secton 230, That Is the Question

After a lot of soul-searching, and sifting through arguments pro and con by leaders and organizations such as the libertarian Electronic Frontier Foundation (con) and long time Biden ally Bruce Reed (pro), I have concluded that President Joe Biden should make good on one of his campaign promises by asking Congress to revoke Section 230 of the Communications Decency Act. That’s the law from 1996 that grants Big Tech media blanket immunity from the mass content it publishes. While revoking Section 230 is not a perfect solution, it would make the companies more responsible, deliberative and potentially liable for the worst of the toxic content, including illegal content, that is algorithmically-promoted by their platforms. Just like traditional media are already liable.

But let’s be clear:  some of the most reckless content would likely not be impacted by 230’s revocation. For example, Donald Trump’s posts on Twitter and Facebook claiming the presidential election was stolen, and his inflammatory speech that YouTube broadcast the morning of the Capitol attack to millions, were false and provocative — but it would be difficult to legally prove that any individuals or institutions were harmed or incited directly by the president’s many outrageous statements. After all, any number of traditional media outlets also have published untrue nonsense without the protections of Section 230, yet they were never held liable. Much content and speech — even undesirable speech — is already protected by the First Amendment.

But FacebookGoogleTwitter’s “engagement algorithms” recommend and amplify sensationalized crazytown user content for one reason – to maximize profits by increasing users’ screen time and exposure to more ads. In fact, the Wall Street Journal reported that Facebook executives scaled back a successful effort to make the site less divisive when they found that it was decreasing their audience share. So this is more like commercial speech, which is entitled to less protection All their fake pretensions aside about an “open and free internet,” their primary business strategy has resulted in the dividing, distracting and outraging of people to the point where society is now plagued by a fractured basis for shared truth, sensemaking and political consensus.

And yet they still refuse to de-weaponize their platforms. Ejecting Donald Trump from their services did nothing to change their destructive business model, it just hid the most visible evidence of it. It was a self-serving act that should fool no one.

A Better Business Model – Investor-Owned Utilities

So revoking Section 230 will likely not be as impactful as its proponents wish, or as its critics fear.  What else needs to be done?

To answer this, we have to recognize that these businesses are creating the new public infrastructure of the digital age, including search engines, global portals for news and networking, web-based movies, music and live streaming, GPS-based navigation apps, online commercial marketplaces, digital labor market platforms. They tell us that they are providing all of this for free, that all we have to do is give them access to our private data. But that has turned out to be a very high price indeed, as the Capitol riots showed.

So the federal government should advance the regulatory incentives for a whole new business model:  treating many of these companies more like investor-owned utilities. Historically, that has been the approach used by the government in other industries, such as telephone, railroad and power generation.  Ironically, even Mark Zuckerberg himself has suggested such an approach.

As utilities, they would be guided by a digital license – just like traditional brick-and-mortar companies must apply for various permits — that defines the rules and regulations of the new business model. This license should require platforms to obtain users’ permission before collecting anyone’s personal data—i.e., opt-in rather than opt-out. These companies never asked for permission to start sucking up our private data or to track our physical locations, or to mass collect every “like,” “share” and “follow” into psychographic profiles that are used by advertisers and political operatives to target users. The platforms started these “data grabs” secretly, forging their destructive brand of “surveillance capitalism.”

Today, these giant platforms know what you like, think, watch, where you go, which church, restaurants and clubs you frequent – they know you better than your spouse or therapist. Should society continue to allow this data grabbing? It seems clear that the dangers of this spying outweigh any alleged benefits, such as hyper-targeted advertising that supposedly caters to our individual desires.

The utility business model also should encourage competition by limiting the mega-scale audience size of these digital media machines; nearly 250 million Americans, about 80 percent of the population, have a profile on one of these platforms. A number of organizations have called for an anti-monopoly break up of these companies, like AT&T once was split into the Baby Bells. That intervention has merits, but let’s be clear:  if Facebook is forced to spin off WhatsApp and its two billion users, and nothing else about the business model changes, that will just result in another Big Tech media behemoth. More competition is good, but less so if they are competing according to the same market rules that the companies themselves have decided.

So another way to reduce the user pools would be through incentives to shift to a revenue model based more on monthly paying subscribers, like how Netflix and cable TV work, rather than on hyper-targeted advertising. That also would likely result in a decline in users.

A utility model also should incorporate other relevant frameworks, such as a fiduciary “duty of care” obligation, a kind of moral and legal Hippocratic oath to “first, do no harm.” British authorities have been trying to erect the foundations of this approach, and the US could partner with them.

Another relevant framework is a product liability model. Imagine the danger if a manufacturer of a pandemic vaccination, or a medical device, could start injecting people, or open up patient’s chests and insert their latest artificial organ, without having their products tested and certified before widespread use. Nuclear power plants, voting equipment vendors and many other systemically-important businesses follow such a protocol.

The application of these frameworks implies restraints on the platforms’ use of specific “engagement” techniques that both research and live experience have shown to be contributing to social isolation, teen depression and suicide, as well as damaging our democracy. These techniques include hyper-targeting of content and advertisements, automated recommendations and addictive behavioral nudges (like pop-up screens, autoplay and infinite scroll) that facilitate manipulation.

The US also should update existing laws to ensure they are applied to the online world. Google’s YouTube/YouTubeKids has been violating the Children’s Television Act—which restricts violence and advertising on TV—for many years, resulting in online lawlessness that the Federal Communications Commission should halt. Similarly, the Federal Elections Commission should rein in the quasi-lawless world of online political ads and donor reporting, which has far fewer rules and less transparency than ads in TV and radio broadcasting.

Big Tech media’s frequent outrages against our humanity are supposedly the price we must pay for being able to post our summer vacation and new puppy pics to our “friends,” or for political dissidents and whistleblowers to alert the world to their just causes. Those are all important uses, but the price being paid is very high. We can do better.

The challenge is to establish sensible guardrails for this 21st century digital infrastructure, so that we can harness the positives and greatly mitigate the dangers. America has done this in the past with new technologies and infrastructure, so we should proceed with confidence that we can get this right.


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  1. fresno dan

    Traditional media are subject to certain laws and regulations, including a degree of liability over what they push into the world. While there is much to criticize about mainstream media and corporate broadcasters, at least they use humans to curate the news, and pick and choose what’s in and out of the newstream. That results in a degree of accountability, including potentially libel lawsuits and other forms of Madisonian-like checks and balances.

    For example, Donald Trump’s posts on Twitter and Facebook claiming the presidential election was stolen, and his inflammatory speech that YouTube broadcast the morning of the Capitol attack to millions, were false and provocative — but it would be difficult to legally prove that any individuals or institutions were harmed or incited directly by the president’s many outrageous statements.
    Again, I am no fan of Trump. But, my contrarian personality and annoying insistence on weighing both sides, what if Trump sued everybody who claimed that he (Trump) was a Russian stooge or owed his 2016 election victory to the Russians?
    At some point, this could devolve into the official truth – it is bad enough now that we have a de facto establishment truth, but what happens when we have a de jure truth? In such an environment, could NC publish information skeptical about Russiagate???
    My solution is that no censorship or the same standards as newspapers. If no censorship means that Facebook and such devolve into vile vitriolic cesspools and the user base decreases substantially – too bad. There is no right that the laws and rules are written to the benefit of Facebook – and I note, what a terrific example of how laws are crafted and designed for the benefit of squillionaires.

  2. Carolinian

    Traditional media are subject to certain laws and regulations, including a degree of liability over what they push into the world. While there is much to criticize about mainstream media and corporate broadcasters, at least they use humans to curate the news, and pick and choose what’s in and out of the newstream. That results in a degree of accountability

    So we’re still waiting for those “responsible” MSM outlets to admit that they promoted lies about Russiagate, the coup in Ukraine, the war in Syria etc. They get to spread this misinformation because the Constitution guarantees freedom of speech and above all freedom of the press. To be sure they are legally liable for libel but that’s about it.

    Once the government starts deciding who is telling the truth and who isn’t then we will be in Chinese internet territory because whoever is controlling the government will of course decide that government opponents speaking “truth to power” are lying. I’d say the above is merely the party line that BAR in this morning’s Links is warning about. Ever since the internet came to be there have been those in Congress and affected industries like the movie business who have wanted to suppress or contol it with the excuse of content theft, child pornography etc. But we have laws against those things already and also laws against libel aimed at private individuals. The true agenda of these critics is not to eliminate misinformation but rather information itself.

  3. GramSci

    I was not pleased with the old model where publisher’s back-room lackeys decided what was and was not worthy of publication, so I think we need to find a different route; maybe this:

    The US (pick your govt) should give every citizen, upon majority, an ipv6 address as a modern-day mailbox, protected by the modern equivalent of the privacy rules that still guard the old tin-and-red-flag mailbox. Additionally, no individual, real or corporate, should be allowed to share another individual’s ipv6 address without express authorization to do so: no more friends-of-friends. Management of these authorizations would be trivial for client-side applications and server-side applications.

    Third-party cookies should be banned or should require a conspicuous tax stamp.

    Gmail should be nationalized and run by the US Postal Service, under the privacy rules that served the USPS well for several hundred years.

    Law enforcement would have the express right to monitor who-talks-to-whom using government-issued ipv6 addresses. To satisfy abstract claims of a right to privacy, governments might need to allow individuals to discard their rights by using a non-government-issued IP address. For example, Alphabet could still sell IP addresses as part of a “commercial” email service, but licensing restrictions would necessarily apply as the set of ipv6 addresses is not infinite.

    1. fajensen

      but licensing restrictions would necessarily apply as the set of ipv6 addresses is not infinite.

      The IPv6 address space is enormous, 128-bits (2128) in size, containing 340,282,366,920,938,463,463,374,607,431,768,211,456 unique IPv6 addresses (granted, there will be some slop for routing and such).

      If the earth was made up entirely from small computers, each computer the size of a grain of sand, networking all of those computers would consume about 20% of the available IPv6 address space.

      The main reason, IMO, we don’t get IPv6 deployed at consumer level is that IPv6 provides end-to-end security, which means that NSA cant easily put their tentacles into the dataflow the way they can when everyone goes via a NAT-box at their ISP. China, Russia, GCHQ and the NSA likes NAT a lot. The other reason is that free blocks of IPv4 adresses are an asset, IPv6 will make the value of that asset go to Zero.

      I agree that the US government should (and easily could) give each citizen an IPv6 prefix and an email account. The tools to set up a decent enough mail server with web-mail are available as open-source, they could even pay some cronies to operate the system for the post office, keeping everyone happy and fat.

  4. Eric Dynamic

    I’m just going to quote the Electronic Frontier Foundation:

    47 U.S.C. § 230, a Provision of the Communication Decency Act

    Tucked inside the Communications Decency Act (CDA) of 1996 is one of the most valuable tools for protecting freedom of expression and innovation on the Internet: Section 230.

    This comes somewhat as a surprise, since the original purpose of the legislation was to restrict free speech on the Internet. The Internet community as a whole objected strongly to the Communications Decency Act, and with EFF’s help, the anti-free speech provisions were struck down by the Supreme Court. But thankfully, CDA 230 remains and in the years since has far outshone the rest of the law.

    Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content. Though there are important exceptions for certain criminal and intellectual property-based claims, CDA 230 creates a broad protection that has allowed innovation and free speech online to flourish.

    This legal and policy framework has allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users. Given the sheer size of user-generated websites (for example, Facebook alone has more than 1 billion users, and YouTube users upload 100 hours of video every minute), it would be infeasible for online intermediaries to prevent objectionable content from cropping up on their site. Rather than face potential liability for their users’ actions, most would likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online. In short, CDA 230 is perhaps the most influential law to protect the kind of innovation that has allowed the Internet to thrive since 1996.

    CDA 230 also offers its legal shield to bloggers who act as intermediaries by hosting comments on their blogs. Under the law, bloggers are not liable for comments left by readers, the work of guest bloggers, tips sent via email, or information received through RSS feeds. This legal protection can still hold even if a blogger is aware of the objectionable content or makes editorial judgments.

    The legal protections provided by CDA 230 are unique to U.S. law; European nations, Canada, Japan, and the vast majority of other countries do not have similar statutes on the books. While these countries have high levels of Internet access, most prominent online services are based in the United States. This is in part because CDA 230 makes the U.S. a safe haven for websites that want to provide a platform for controversial or political speech and a legal environment favorable to free expression.

    EFF works to ensure strong legal protections for Internet intermediaries and endeavors to fight threats that would weaken such protections for intermediaries and users. We realize that a combination of technology policy and law protecting intermediaries ultimately helps uphold freedom of speech online.

    CDA 230 — Key Legal Cases
    Legislative History
    EFF Involvement
    CDA 230 Successes
    Ratingz Network

    See also

    1. Yves Smith Post author

      The EFF is really misleading you and the public. If bloggers do any moderation of content, including comments, they are liable. The idea that they aren’t it a total crock. NC is liable for comments as well as post content.

      1. t

        Indeed. Facebook and Google don’t provide a storage room for whatever people post. They remove things all the time, for opaque reasons. They hide things that people actively want. They promote things that are rarely looked at – if the few who look engage with ads or have almost exclusively bot traffic oe for some reason someone wants to push it. They have user agreements that they do not honor. The EFF is being very silly. And, I mean, they know how a boolean search works and that the Google search doesn’t allow it.

        Remember when Google almost killed Metafilter?

        1. Yves Smith Post author

          I have a top First Amendment/media lawyer of a strong libertarian slant who disagrees 100%. Anyone who relies on a general legal analysis from a tech magazine written by a non-lawyer is asking for a world of hurt.

          For one of many problems with your claim, we ARE unambiguously a publisher. See the copyright notice at the bottom of every page? Help me.

          Far and away the biggest protection that most small site operators have is not Section 230. It’s that defamation cases are hard to win and expose the other side to discovery. If you think Section 230 protects people like me from being hauled into court, you are smoking something strong. The odds of us being able to get a case dismissed via summary judgement/a motion to dismiss by citing Section 230 (and even that would be a >$25,000 exercise) is close to zero. Anything other than that means full bore litigation and a very big price tag. Our weapon would be the damage we could do in discovery, not any legally untested and highly questionable Section 230 contentions.

          1. nn

            And can he back it up with something at least as good as tech magazine article? Because I’ve seen lot of people claim exactly this, that content moderation makes you liable, but when pointing out what section 230 actually says, there was never response.

            I mean, it even doesn’t make much sense. If moderation makes sites liable, then why all the fuss about this? Facebook et. all already do moderation and always did, so it should be possible to sue them without the need to change anything in the law.

          2. denise

            I’m suffering a bit of dissonance from hearing Yves dismiss Mike Masnick as “a general legal analysis written by a non-lawyer”. MIke Masnick and Techdirt are to technology regulation what NC is to financial regulation, if not more so. I would trust Masnick’s opinion on the meaning of section 230 before that of most lawyers. And I think Masnick’s actual article is not inconsistent with what you say above, if you read it carefully. In particular “protection by section 230” is not a on-off switch. Yes, websites (including publishers) are protected by 230, when/where it is applicable, but for a content-producing publisher, those circumstances are minimal. (And, as you note, even if/when it would be applicable, the practicalities of legal action often have their own dynamics.)

        2. fajensen

          Sorry, but Yves is totally correct: Content Moderation makes one a publisher, therefore liable for content published!

  5. The Rev Kev

    With all due respect, I am afraid that there are a lot of holes in the arguments. Too many to cover in a simple comment. As an example. ‘The mob attack on the US Capitol was incited and planned over Facebook, Twitter, YouTube and other digital media platforms.’ Does that mean that if it was planned the old-fashioned way over phones, that the phones should be monitored more closely and if you said something that a phone company did not like, they would cut you off your phone account?

    The regular media is a monster in its own right but I hear no call for reform. Most newspapers, radio stations, TV stations are owned by what – six corporations? And they can call for wars against one country after another and hire war criminals to use their media with no penalties and no ‘degree of liability.’ Look at the fiasco of Russiagate which sent half the country crazy over the past four years. Nobody was punished for that except the people that called bs on the whole thing. All the focus is on social media at the moment because certain interests want it to fall in lime with the regular main stream media. You may as well have Disney run your internet.

    So a Better Business Model is Investor-Owned Utilities? No good that as in the end, only institutional investors would get any say on how it is run. Here is an idea. Make it a government-run utility but with every person connected having precisely one vote. According to my dictionary, that is called democracy. Then have those account holders vote on what the rules of the road are by majority vote. Anything too radical would get voted down but you would do it on an annual basis to stop flash-campaigns. It could work that.

    1. Carolinian

      Interestingly when actual liberals as opposed to the faux versions were running our government involved media policies they insisted on more speech, not less. Users of the broadcast spectrum were required to follow an at least theoretically even handed Fairness Doctrine and cable television channels were required to carry “free speech” channels where ordinary citizens could spout off–perhaps even spouting conspiracy theories.

      And speaking of that, an article here the other day quite correctly suggested that the proliferation of conspiracy theories reflects a dissatisfaction with the truthfulness of our MSM outlets–a dissatisfaction that is entirely justified. The groupthink of the bigs–all owned by plutocrats these days–is the reason many of us turned to the internet in the first place. When the first amendment was created as a check to government power the media landscape was full of small publishers and more like the internet itself than today’s system where mass media are owned by a few companies. The real problem with Facebook and Twitter is that they are turning the internet into this same plutocratic model. If they need to be controlled it should be on the basis of antitrust, not speech regulation.

      1. Yves Smith Post author

        Huh? Did you miss that there was censorship of television? I actually met Dan Rowan of Rowan & Martin’s Laugh In, and he discussed the dance he had to go through pretty much all the time with the censors over the material he wanted to run. The big watershed in America was All in the Family; people in the industry describe the change as if it were before and after Christ.

        Even now, the FCC prohibits obscene content for anyone who has a broadcast license. That’s why you don’t have porn on network TV or radio:

        Deciding what’s obscene, indecent or profane

        Each type of content has a distinct definition:

        Obscene content does not have protection by the First Amendment. For content to be ruled obscene, it must meet a three-pronged test established by the Supreme Court: It must appeal to an average person’s prurient interest; depict or describe sexual conduct in a “patently offensive” way; and, taken as a whole, lack serious literary, artistic, political or scientific value.

        Indecent content portrays sexual or excretory organs or activities in a way that is patently offensive but does not meet the three-prong test for obscenity.

        Profane content includes “grossly offensive” language that is considered a public nuisance.

        Factors in determining how FCC rules apply include the specific nature of the content, the time of day it was broadcast and the context in which the broadcast took place.

        Broadcasting obscene content is prohibited by law at all times of the day. Indecent and profane content are prohibited on broadcast TV and radio between 6 a.m. and 10 p.m., when there is a reasonable risk that children may be in the audience.

        I was really shocked when I moved to Oz in 2002 that they showed Queer as Folk at 10:00 PM on “free to air” (network) television. It regularly has gay soft porn, short scenes of naked men (wellie women too but nowhere near as often) having sex but not showing their equipment. But the Aussies are much more laid back about sex, including gay sex, than Americans. So community norms play a big role there and here.

        Section 230 is about liability, not censorship. It would impose the same liability on platforms that media and this humble blog NOW have. Why should Facebook and Twitter get away with what CBS and the Times and Counterpunch and NC can’t? Why should they enjoy what amounts to a competitive advantage?

        And I also have to tell you the main issue is defamation, and defamation cases are extremely hard to win. A factual foundation for the statements, no matter how harsh or damaging, makes the statements permissible. And in defamation cases, the party being sued gets to do discovery on the plaintiff. Trust me, just about no one wants a commentator or journalist rooting in their file cabinets about whatever issue has them het up in the first place.

        And even in the rare instances when you win defamation case, it is very difficult to prove damages. Harry Shearer managed to prevail in one and was awarded $1.

        It is really appalling to see how uninformed these comments all. It’s largely legally invalid pom pom waving.

      2. vlade

        Yes, the first amendment protects the free speach and press from _government_.

        It doesn’t, as many people believe, given them right to say whatever they want w/o consequences.

        If FB/Twitter etc. exercise editorial powers, they take responsibility for the content – it cannot be otherwise, everyone does it. There are only two options – free for all w/o liability, or editorial with liability.

        1. Carolinian

          Cronkite said that the only thing a news outlet had to sell was its “credibility” and therefore the “consequences” of telling lies about news events in newspapers would presumably be that people would stop reading them. It’s currently the fad to say that “hate speech” must be suppressed but when a newspaper like the NYT tells lies about aluminum tubes in Iraq or promotes untruths about Russia or even Trump are they engaged in “hate speech” that cries fire in a crowded theater and must be suppressed? Arguably the NYT has done a lot more damage than Qanon.

          Free speech is pretty binary–you either have it or you don’t and the few exceptions under our American law are very limited indeed. Some of us think that’s a good thing.

  6. mike

    Perhaps the answer lies in protecting people from giving their information away too cheaply.

    We have minimum wage laws. Maybe we should have a minimum price for personal info so the big companies are not able to take advantage of the little guy. Maybe say 50% of revenue derived from said info. we can call it a
    Minimum Price for Mined Personal Information.

  7. notabanker

    To me, this issue is size / scale. Facebook, Amazon, Google should have never been allowed to grow to the size they are , and now it’s putting the genie back in the bottle. Same for governments, financial institutions, pharma etc… the whole lot. Neoliberal capitalism stifles competition, it does not promote it. It’s methodology inevitably leads to hugely assymmtrical concentrations of power. It doesn’t matter who or what entity does the censorship, the absolute power they hold will corrupt it.

    These platforms need to be broken up and M&A needs to be severely restricted. Same could be said for the US government.

    1. tegnost

      from the steve waldman link recommended by vlade above…

      repealing Section 230 would expose incumbents to pro-social standards under which scale becomes (literally) a liability rather than an asset, where upstarts have a competitive advantage that derives from contextually and carefully applied human attention, which does not easily scale.

      seems like it would at least be a toe in the door and could scale. possibly even leading to amazon becoming responsible for fake products and fake reviews

    2. Cynthia

      I couldn’t agree more, Not-a-Banker! Let me also add that Biden isn’t gonna revoke Section 230. Not at all. After all, the people who’ll be damaged the most by it being revoked are the very same people who helped get him elected. There’s no question that having a monopoly of players all acting as a single political force in the Big Tech media space — specifically, Google, Facebook, Twitter and Amazon —is what tipped the presidency election in Biden’s favor. And more than likely, these media tech giants also helped to get two Georgia Dems elected to the Senate as well. Thus, revoking Section 230 is an absolute non-starter under the Biden Administration. Needless to say, about the only group of people who stand to gain by having it revoked is the legal industry, and no one should like that other than high-priced lawyers hired to argue either side in the courtroom.

      Also, I don’t think it’s likely that any of these media tech giants, from Google and Facebook to Twitter and Amazon, will ever be turned into public utilities, either. It definitely won’t happen under the Biden Administration for the same reason I mentioned above with regards to Section 230. Nor is it likely to happen under a Republican Administration either, especially if it’s run by a Republican president who’s very much part of political mainstream. That’s because all mainstream politicians are deep in the back pocket of Big Tech, no doubt.

      Needless to say, no company can be made into a public utility without it first being proven by the courts that the company in question is in violation of antitrust laws. Since when has that ever happened in recent memory? How about not ever, if never at all. Besides the AT&T breakup, which turned out to be a total waste of time and effort, BTW, you have to go way back to the 1940s to see any substantial antitrust laws being enforced, at least when it comes to something that resembles the media tech moguls today.

      As I recall, back in the mid-40s, recently after 1939, the so-called “Golden Year of Hollywood,” the courts stepped in and broke up all the film studio giants on grounds that they were in violation of anti-trust. Which wasn’t all that warranted, IMO, given that these giants hadn’t really grown to become all that big and powerful in the first place, at least in comparison to their modern-day counterparts of today. Simply put, the Googles of the past are nothing like the Googles of today. Warner Brothers and Universal, including 9 or so other studio giants, were literally peons compared to Google, Facebook, Twitter and Amazon. Which I suppose is why they got broken up while none of their modern-day counterparts have, or probably ever will.

      The only way to ever break them up, if it’s actually possible, is to get rid of the cozy relationship Big Tech has with the State, which has resulted in what’s widely known as the Corporate State of America. But that can’t be gotten rid of until the vast majority of voters come the realization that corporations and everyone who works on their behalf, including the entire spectrum of mainstream politicians, are the enemy of our country. Trump and his MAGA supporters are too outside the political mainstream and have too few ties to the corporate power structure to be labeled as enemies of the state. But because they are labeled as such by the corporate mainstream media, led by the likes Google, Facebook, Twitter and Amazon, such labeling is far from the truth. If anything, it’s quite the opposite of the truth. Which, again, gets back the most important reason to break up these giants: restore truth in the media, or at least make it unbiased!

  8. Paul Harvey 0swald

    From the EFF quote above:

    The legal protections provided by CDA 230 are unique to U.S. law; European nations, Canada, Japan, and the vast majority of other countries do not have similar statutes on the books. While these countries have high levels of Internet access, most prominent online services are based in the United States. This is in part because CDA 230 makes the U.S. a safe haven for websites that want to provide a platform for controversial or political speech and a legal environment favorable to free expression.

    What stops Big Social from moving to the equivalent of an off shore tax haven? Regulatory arbitrage, coming up.

    IMO, Facebook is already a “s***hole country”. I stopped using it years ago, and it only enrages my wife anymore. I’d gladly pay for a similar service that limits posts to those in a polite manner. Like, for example, here. Thanks NC! (And I do help pay for it…)

  9. Matthew G. Saroff

    Even if you support section 230 wholeheartedly, and I think that reforms are needed, the idea that section 230 protects Amazon from being liable for shipping defective, dangerous, and fraudulent merchandise from its own warehouses is completely nuts.

  10. King

    I wonder if Youtube recommended videos or Facebook’s feed (and other such lists to a sites user content) that are algorithmicly generated shouldn’t be seen as a loophole in 230. One that might not require new legislation to fix.

    More broadly, at what point would my basic webhost become liable for stuff I put online. If everyone, or many people become their own publisher this is a different technical and legal landscape. But I expect govt and capitalists to keep trying to concentrate or roll up big sections of the web for control and profit.

  11. Alex Cox

    Craig Murray is on trial in Scotland today for the crime of other people commenting on his Twitter posts.

    Like Julian Assange, Murray doesn’t face a jury – just a single, politically appointed magistrate.

    Murray doesn’t control Twitter, yet he is being held liable for third parties’ comments, which allegedly might lead to “jigsaw identification” of witnesses who perjured themselves in the Alex Salmon trial (a jury acquitted AS on all counts).

    It is clearly a fit-up, to punish Murray for supporting Scottish nationalism and Assange, but if he is found guilty, the precedent for Twitter users will be disastrous.

  12. Steven Hill

    Hi, I am the author of the article, Steven Hill here. Thanks to Yves for posting it, and to others for the interesting discussion. The challenge here is how should we structure the media, free speech and online public discourse with the new communication technologies that have been created in recent years. This New Media is still in its infancy, both in terms of its impacts and technologies still to be widely used (deep fakes, virtual reality, etc) Re: policy, the devil is in the details, which requires careful sifting and balancing of important — and sometimes conflicting — values.

    Here are a few more thoughts, as I try to sift thru goals and values.

    No one expects the New York Times, Washington Post, Die Zeit, BBC, CNN or ABC to be a permanently available mouthpiece for Trump and his ilk. Everyone understands that these traditional media outlets have an editorial right to feature the content they want to feature. The same for Fox News, everyone understands that it is pro-Trump and anti-Biden.

    But somehow the “free and open Internet” ideology, which has been promulgated since the 1980s or so, has convinced many people and orgs (like Electronic Frontier Fdn) that the digital media platforms are different than traditional publishers and media broadcasters. That they are some kind of global digital Agora, where anyone can say whatever they want. A global free speech zone, or an “open mic” like we sometimes would see at rallies and protests. Yes, that was a beautiful dream – about 10 years ago.

    But today, in January 2021, that dream is completely dead, and in fact has been dead for sometime. Most obvious, China has its own version of the internet, and the EU is trying to tweak the US version via regulation. And yes, these platforms actually can decide what’s in or out, especially when it comes to major political figures like banning Trump. Somehow this seems like a violation of what their mission was supposed to be.

    But in fact, that has always been the case. These platforms have been deciding what’s in and out, what gets amplified or downplayed, for many years. But they did it, not based on politics or what’s deemed offensive, but according to the commercial, profit-seeking values of their company. That led them to use algorithmic curation to amplify the most scandalous, conspiracy-driven and outraged information, because that’s what keeps people clicking and watching, which meant users seeing more ads and the platforms earning more profit. It’s like the National Enquirer has taken over our online media ecosystem.

    So this is a classic case of a clash of values. In reality, these companies and their services are not some global open mic free speech zone, they are powerful, dominant monopolies that amplify the content they want to maximize profits. Any free speech they create is secondary to that agenda, which has been called “surveillance capitalism.” That’s why I wrote in my article, in their pursuit of profits via their hyper-targeted advertising business model, democracies around the world have been subjected to a grand experiment: “can a nation’s news and information infrastructure, the lifeblood of any democracy, be dependent on digital technologies that allow a global free speech zone of unlimited audience size, combined with algorithmic (non-human) curation of massive volumes of mis/disinformation, that can be spread with unprecedented ease and reach?”

    In short, this “free speech” viewpoint, which extols the virtues of the free and open Internet, has been having difficulty recognizing reality for quite some time. From the point of “free speech,” the jurisprudence in the US of the First Amendment actually contains two paradigms: 1) the well-known “speaker autonomy” paradigm, that is a speaker on the street corner being able to speak her mind without being hauled off by the police or government authorities, and 2) the lesser-known “quality of robust public debate” paradigm, most eloquently articulated by Supreme Court Justice William Brennan, which held that the quality of public discourse also had to be front and center of our First Amendment understanding.

    The digital media platforms have certainly enhanced the first principle of “speaker autonomy”, but at the expense of the second principle, the quality of public debate. These two values of the FA are clashing mightily here.

    To uphold the second principle of the FA, the world needs these digital media platforms to do MORE editing and curating, not less. And they need to use human curators who can tamp down the crazytown content that now dominates there, instead of algorithmic curation amplifying according to commercial values. Algorithms with the right mission/programming could perhaps help with this process, but humans need to be in control. Isn’t that one of the lessons here demanding to be acknowledged?

    In short, these platforms need to evolve into something MORE like the New York Times, WA Post, Die Zeit, CNN, or if they choose Fox News, with an editorial line that is expressed by what they choose to feature and choose to cut out. The choice at this point is rather clear: either use human editing/curation according to an editorial line, or retain this profit-driven editing/curation according to commercial-driven algorithms, which only obscures the platforms’ true role as an editor by wallpapering it over under the guise of this comatose dream of a “free and open Internet.”

    Until we grapple with this inconsistency between fantasy and reality, the status quo will largely prevail, which means the platforms will wait until the public outrage over the next Cambridge Analytica, or the next crazytown content put forward by a populist demagogue, is so great that finally they take action, and censor someone like the next Trump, accompanied by outrage from the Electronic Frontier Foundation and other “internet free speech” fundamentalists over the excessive power of these platforms as a violation of free speech and the “free and open Internet.” Rinse and repeat, rinse and repeat.

    1. drumlin woodchuckles

      Why not just outlaw any digital platform from selling space to advertisers? Why not just outlaw any digital platform from selling user data to anyone? In fact, why not outlaw the first-instance collection of this data to begin with?

      And by “outlaw”, I mean decades of hard time in the worst federal prisons for every executive and employer convictably involved in breaking those laws I just suggested.

      Why not outlaw the use of the eyeball sticker and click driver algorithms the platforms currently use? With the punishment being life in prison without the possibility of parole?

    2. nn

      Somehow I don’t think internet becoming another NYT, WP, CNN, etc. is good thing. But yeah, that’s exactly where all this is going.

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