On October 14, the New York Post published a story alleging that smoking gun emails on Hunter Biden’s laptop implicated Joe Biden in corrupt schemes.
It was immediately obvious that the story was almost certainly complete bullshit. Today, a few weeks later, it has disappeared, leaving only a noxious stink, but I want to focus on the period immediately after it was first published.
Within three hours, Twitter took the most aggressive action: it banned links to the story, and redirected existing links to a landing page warning that the story violated Twitter guidelines.
Facebook moved just as quickly and almost as directly to restrict distribution of the story by throttling the algorithms that promote posts.
YouTube lagged behind, which is its typical position on moderation of pubic policy issues. It is slower, more deliberative, and never announced any direct action to prevent the spread of the story.
All of those actions fulfill the intent of Section 230. Facebook, Twitter, and YouTube make their own decisions about how to moderate what is posted, knowing that they will not be sued for untrue things posted by users or for deciding not to allow something to be posted. That’s the point of Section 230. That legal protection has allowed those companies, and thousands more, to exist and flourish.
But the actions by Facebook and Twitter provided the excuse Republicans had been looking for to throw a tantrum. The Hunter Biden story was the long-awaited October surprise for the election and Republicans were poised for a triumphant encore of What-About-The-Emails-Lock-Him-Up. How frustrating! They weren’t even given a chance to fool people with their shiny new conspiracy theory.
So Congressional subpoenas were issued, leading to a Senate Commerce Committee hearing on October 28 and a Senate Judiciary Committee hearing on November 17 where Republicans yelled at Mark Zuckerberg and Jack Dorsey and demanded that Section 230 be repealed or modified. Donald Trump called Facebook and Twitter “terrible” and tweeted that Section 230 must be repealed. And Federal Communications Commission Chairman Ajit Pai announced that the FCC would start an effort to “clarify” Section 230. Fifteen or more bills have been introduced in Congress in 2020 to reform Section 230, basically all by Republicans. Mike Masnick at TechDirt says: “If you were in a coma for the past 12 months, just came out of it, and had to figure out what had happened in the last year or so solely based on new bills introduced in Congress, you would likely come to the conclusion that Section 230 was the world’s greatest priority and the biggest, most pressing issue in the entire freaking universe. What’s going on over there on Capitol Hill? If you introduce 12 bills to destroy the internet do you get a 13th one free?”
Republicans think that repealing Section 230 would mean Facebook and Twitter would stop “censoring” conservative content. They’re wrong – more about that below.
On the other hand, Democrats are pretty enamored of content moderation. Some leading Democrats think that tech companies are using Section 230 to avoid taking responsibility for misinformation, hate speech, or other dangerous content. Joe Biden has said that Section 230 ought to be repealed, and Nancy Pelosi has referred to it as a “real gift to Big Tech.” In that view, repealing Section 230 would encourage MORE moderation and censorship, not less.
So when Ajit Pai said “there is bipartisan support in Congress to reform (Section 230),” it was true only in the same sense that there is bipartisan support for inaugurating someone as President on January 20. The parties want very different things. They do not agree on the reasons or the remedies.
Freedom of speech under the First Amendment and Section 230 has tremendous social costs, and those costs are mounting as trolls, criminals, and foreign enemies figure out new ways to exploit the Internet. Facebook, Twitter, Reddit, and many other online networks are misused for terrorist recruitment, online sex trafficking, and vicious harassment, in addition to the nonstop onslaught of false information that is damaging our democracy, especially in the last four years. Section 230’s liability protection extends to fringe sites known for hosting hate speech, anti-Semitic content and racist tropes like 8chan.
Protecting Section 230 requires balancing freedom of speech against privacy and other important values. It’s not easy.
What would be the effect of removing Section 230?
This is the confusing part.
At first glance, Section 230 seems to give Facebook and Twitter no incentive to moderate posts.
It’s actually the opposite. Facebook and Twitter are well aware that they will become hellholes of spam and harassment if they do not police their platforms. Section 230 encourages them to moderate content without risking legal trouble. Each one has been experimenting in 2020, trying to find the right balance between free expression and aggressive moderation.
If Section 230 protection was removed, websites would face liability for all user content if they moderated any user content. It’s called the moderators’ dilemma.
Remember the case that gave rise to Section 230, when Prodigy was held responsible for defamatory posts because it had moderated other unrelated posts. The legal principle: without Section 230, if a website starts looking for needles, it owns the entire haystack.
If Section 230 is repealed, websites would have two choices:
- Moderate nothing, so they’re not liable for damaging content, which in 2020 almost certainly results in a cesspool of misinformation.
- Or, remove anything and everything that is even remotely controversial.
If conservatives think that too much of their content is being censored now, just wait until Facebook becomes liable for everything its users post.
There are two issues that make it hard to disturb the legal framework that has created the modern Internet.
The first is the sheer volume of content posted every day on social networks. In June, Zoom reached over 300 million daily meeting participants. Facebook has billions of users, and Twitter has hundreds of millions. Last year, Facebook released a report showing the billions of pieces of content it moderated, from child exploitation to terrorist propaganda. It would be literally impossible for any amount of human moderators to see every piece of content posted.
Facebook and Twitter occasionally say they could live with Section 230 reforms. That’s because only very large companies have the resources to engage in large-scale content moderation. The big companies would find ways to live with new rules.
That’s why the second issue is so important: if Section 230 protection was removed, it would raise a huge barrier for smaller companies and startups, which cannot do content moderation on the scale required to be safe from liability. Smaller websites would not host any user content at all, or they would actively censor what we say, what we see, and what we do online. Startups would never appear, leaving the big companies more entrenched than ever.
Here’s one summary of what a post-Section 230 world would be like:
“The possibility that companies or their personnel could be prosecuted in 50 states for the crimes of others, which they don’t know about, could spell the end of user-posted content. For many Internet services, the most important content is provided by users. Increasing risk for these services would have the unintended consequence of taking us back to the era when services faced legal liability for investigating abuse, misconduct, and criminal activity.
“If every action by Internet industry employees dedicated to safety and content moderation could lead to criminal exposure, or provide leverage for a vexatious litigant, we’re likely to see smaller services exit the market. Larger services may engage in mass removal of lawful content. Internet speakers who cannot promise to indemnify intermediaries would be pushed offline, marginalizing voices to whom the Internet has provided a platform. Congress wisely anticipated this risk in the 1990s, which is why Section 230 was enacted in the first place. This foresight contributed to the success of the modern Internet economy. Undermining these protections places that at risk.”
Which brings us back to Professor Kosseff’s book, The Twenty-Six Words That Created The Internet: “The dynamic, communal, and vicious public square exists because of one federal law.”
Be skeptical of calls to modify or repeal Section 230. The modern Internet depends on it.
