Archives For section 230

Over at the Federalist Society’s blog, there has been an ongoing debate about what to do about Section 230. While there has long-been variety in what we call conservatism in the United States, the most prominent strains have agreed on at least the following: Constitutionally limited government, free markets, and prudence in policy-making. You would think all of these values would be important in the Section 230 debate. It seems, however, that some are willing to throw these principles away in pursuit of a temporary political victory over perceived “Big Tech censorship.” 

Constitutionally Limited Government: Congress Shall Make No Law

The First Amendment of the United States Constitution states: “Congress shall make no law… abridging the freedom of speech.” Originalists on the Supreme Court have noted that this makes clear that the Constitution protects against state action, not private action. In other words, the Constitution protects a negative conception of free speech, not a positive conception.

Despite this, some conservatives believe that Section 230 should be about promoting First Amendment values by mandating private entities are held to the same standards as the government. 

For instance, in his Big Tech and the Whole First Amendment, Craig Parshall of the American Center for Law and Justice (ACLJ) stated:

What better example of objective free speech standards could we have than those First Amendment principles decided by justices appointed by an elected president and confirmed by elected members of the Senate, applying the ideals laid down by our Founders? I will take those over the preferences of brilliant computer engineers any day.

In other words, he thinks Section 230 should be amended to only give Big Tech the “subsidy” of immunity if it commits to a First Amendment-like editorial regime. To defend the constitutionality of such “restrictions on Big Tech”, he points to the Turner intermediate scrutiny standard, in which the Supreme Court upheld must-carry provisions against cable networks. In particular, Parshall latches on to the “bottleneck monopoly” language from the case to argue that Big Tech is similarly situated to cable providers at the time of the case.

Turner, however, turned more on the “special characteristics of the cable medium” that gave it the bottleneck power than the market power itself. As stated by the Supreme Court:

When an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber’s home. Hence, simply by virtue of its ownership of the essential pathway for cable speech, a cable operator can prevent its subscribers from obtaining access to programming it chooses to exclude. A cable operator, unlike speakers in other media, can thus silence the voice of competing speakers with a mere flick of the switch.

Turner v. FCC, 512 U.S. 622, 656 (1994).

None of the Big Tech companies has the comparable ability to silence competing speakers with a flick of the switch. In fact, the relationship goes the other way on the Internet. Users can (and do) use multiple Big Tech companies’ services, as well as those of competitors which are not quite as big. Users are the ones who can switch with a click or a swipe. There is no basis for treating Big Tech companies any differently than other First Amendment speakers.

Like newspapers, Big Tech companies must use their editorial discretion to determine what is displayed and where. Just like those newspapers, Big Tech has the First Amendment right to editorial discretion. This, not Section 230, is the bedrock law that gives Big Tech companies the right to remove content.

Thus, when Rachel Bovard of the Internet Accountability Project argues that the FCC should remove the ability of tech platforms to engage in viewpoint discrimination, she makes a serious error in arguing it is Section 230 that gives them the right to remove content.

Immediately upon noting that the NTIA petition seeks clarification on the relationship between (c)(1) and (c)(2), Bovard moves right to concern over the removal of content. “Unfortunately, embedded in that section [(c)(2)] is a catch-all phrase, ‘otherwise objectionable,’ that gives tech platforms discretion to censor anything that they deem ‘otherwise objectionable.’ Such broad language lends itself in practice to arbitrariness.” 

In order for CDA 230 to “give[] tech platforms discretion to censor,” they would have to not have that discretion absent CDA 230. Bovard totally misses the point of the First Amendment argument, stating:

Yet DC’s tech establishment frequently rejects this argument, choosing instead to focus on the First Amendment right of corporations to suppress whatever content they so choose, never acknowledging that these choices, when made at scale, have enormous ramifications. . . . 

But this argument intentionally sidesteps the fact that Sec. 230 is not required by the First Amendment, and that its application to tech platforms privileges their First Amendment behavior in a unique way among other kinds of media corporations. Newspapers also have a First Amendment right to publish what they choose—but they are subject to defamation and libel laws for content they write, or merely publish. Media companies also make First Amendment decisions subject to a thicket of laws and regulations that do not similarly encumber tech platforms.

There is the merest kernel of truth in the lines quoted above. Newspapers are indeed subject to defamation and libel laws for what they publish. But, as should be obvious, liability for publication entails actually publishing something. And what some conservatives are concerned about is platforms’ ability to not publish something: to take down conservative content.

It might be simpler if the First Amendment treated published speech and unpublished speech the same way. But it doesn’t. One can be liable for what one speaks, writes, or publishes on behalf of others. Indeed, even with the full protection of the First Amendment, there is no question that newspapers can be held responsible for delicts caused by content they publish. But no newspaper has ever been held responsible for anything they didn’t publish.

Free Markets: Competition as the Bulwark Against Abuses, not Regulation

Conservatives have long believed in the importance of property rights, exchange, and the power of the free market to promote economic growth. Competition is seen as the protector of the consumer, not big government regulators. In the latter half of the twentieth century into the twenty-first century, conservatives have fought for capitalism over socialism, free markets over regulation, and competition over cronyism. But in the name of combating anti-conservative bias online, they are willing to throw these principles away.

The bedrock belief in the right of property owners to decide the terms of how they want to engage with others is fundamental to American conservatism. As stated by none other than Bovard (along with co-author Jim Demint in their book Conservative: Knowing What to Keep):

Capitalism is nothing more or less than the extension of individual freedom from the political and cultural realms to the economy. Just as government isn’t supposed to tell you how to pray, or what to think, or what sports teams to follow or books to read, it’s not supposed to tell you what to do with your own money and property.

Conservatives normally believe that it is the free choices of consumers and producers in the marketplace that maximize consumer welfare, rather than the choices of politicians and bureaucrats. Competition, in other words, is what protects us from abuses in the marketplace. Again as Bovard and Demint rightly put it:

Under the free enterprise system, money is not redistributed by a central government bureau. It goes wherever people see value. Those who create value are rewarded which then signals to the rest of the economy to up their game. It’s continuous democracy.

To get around this, both Parshall and Bovard make much of the “market dominance” of tech platforms. The essays take the position that tech platforms have nearly unassailable monopoly power which makes them unaccountable. Bovard claims that “mega-corporations have as much power as the government itself—and in some ways, more power, because theirs is unchecked and unaccountable.” Parshall even connects this to antitrust law, stating:  

This brings us to another kind of innovation, one that’s hidden from the public view. It has to do with how Big Tech companies use both algorithms plus human review during content moderation. This review process has resulted in the targeting, suppression, or down-ranking of primarily conservative content. As such, this process, should it continue, should be considered a kind of suppressive “innovation” in a quasi-antitrust analysis.

How the process harms “consumer welfare” is obvious. A more competitive market could produce social media platforms designing more innovational content moderation systems that honor traditional free speech and First Amendment norms while still offering features and connectivity akin to the huge players.

Antitrust law, in theory, would be a good way to handle issues of market power and consumer harm that results from non-price effects. But it is difficult to see how antitrust could handle the issue of political bias well:

Just as with privacy and other product qualities, the analysis becomes increasingly complex first when tradeoffs between price and quality are introduced, and then even more so when tradeoffs between what different consumer groups perceive as quality is added. In fact, it is more complex than privacy. All but the most exhibitionistic would prefer more to less privacy, all other things being equal. But with political media consumption, most would prefer to have more of what they want to read available, even if it comes at the expense of what others may want. There is no easy way to understand what consumer welfare means in a situation where one group’s preferences need to come at the expense of another’s in moderation decisions.

Neither antitrust nor quasi-antitrust regimes are well-suited to dealing with the perceived harm of anti-conservative bias. However unfulfilling this is to some conservatives, competition and choice are better answers to perceived political bias than the heavy hand of government. 

Prudence: Awareness of Unintended Consequences

Another bedrock principle of conservatism is to be aware of unintended consequences when making changes to long-standing laws and policies. In regulatory matters, cost-benefit analysis is employed to evaluate whether policies are improving societal outcomes. Using economic thinking to understand the likely responses to changes in regulation is fundamental to American conservatism. Or as Bovard and Demint’s book title suggests, conservatism is about knowing what to keep. 

Bovard has argued that since conservatism is a set of principles, not a dogmatic ideology, it can be in favor of fighting against the collectivism of Big Tech companies imposing their political vision upon the world. Conservatism, in this Kirkian sense, doesn’t require particular policy solutions. But this analysis misses what has worked about Section 230 and how the very tech platforms she decries have greatly benefited society. Prudence means understanding what has worked and only changing what has worked in a way that will improve upon it.

The benefits of Section 230 immunity in promoting platforms for third-party speech are clear. It is not an overstatement to say that Section 230 contains “The Twenty-Six Words that Created the Internet.” It is important to note that Section 230 is not only available to Big Tech companies. It is available to all online platforms who host third-party speech. Any reform efforts at Section 230 must know what to keep.In a sense, Section (c)(1) of Section 230 does, indeed, provide greater protection for published content online than the First Amendment on its own would offer: it extends the First Amendment’s permissible scope of published content for which an online service cannot be held liable to include otherwise actionable third-party content.

But let’s be clear about the extent of this protection. It doesn’t protect anything a platform itself publishes, or even anything in which it has a significant hand in producing. Why don’t offline newspapers enjoy this “handout” (though the online versions clearly do for comments)? Because they don’t need it, and because — yes, it’s true — it comes at a cost. How much third-party content would newspapers publish without significant input from the paper itself if only they were freed from the risk of liability for such content? None? Not much? The New York Times didn’t build and sustain its reputation on the slapdash publication of unedited ramblings by random commentators. But what about classifieds? Sure. There would be more classified ads, presumably. More to the point, newspapers would exert far less oversight over the classified ads, saving themselves the expense of moderating this one, small corner of their output.

There is a cost to traditional newspapers from being denied the extended protections of Section 230. But the effect is less third-party content in parts of the paper that they didn’t wish to have the same level of editorial control. If Section 230 is a “subsidy” as critics put it, then what it is subsidizing is the hosting of third-party speech. 

The Internet would look vastly different if it was just the online reproduction of the offline world. If tech platforms were responsible for all third-party speech to the degree that newspapers are for op-eds, then they would likely moderate it to the same degree, making sure there is nothing which could expose them to liability before publishing. This means there would be far less third-party speech on the Internet.

In fact, it could be argued that it is smaller platforms who would be most affected by the repeal of Section 230 immunity. Without it, it is likely that only the biggest tech platforms would have the necessary resources to dedicate to content moderation in order to avoid liability.

Proposed Section 230 reforms will likely have unintended consequences in reducing third-party speech altogether, including conservative speech. For instance, a few bills have proposed only allowing moderation for reasons defined by statute if the platform has an “objectively reasonable belief” that the speech fits under such categories. This would likely open up tech platforms to lawsuits over the meaning of “objectively reasonable belief” that could deter them from wanting to host third-party speech altogether. Similarly, lawsuits for “selective enforcement” of a tech platform’s terms of service could lead them to either host less speech or change their terms of service.

This could actually exacerbate the issue of political bias. Allegedly anti-conservative tech platforms could respond to a “good faith” requirement in enforcing its terms of service by becoming explicitly biased. If the terms of service of a tech platform state grounds which would exclude conservative speech, a requirement of “good faith” enforcement of those terms of service will do nothing to prevent the bias. 

Conclusion

Conservatives would do well to return to their first principles in the Section 230 debate. The Constitution’s First Amendment, respect for free markets and property rights, and appreciation for unintended consequences in changing tech platform incentives all caution against the current proposals to condition Section 230 immunity on platforms giving up editorial discretion. Whether or not tech platforms engage in anti-conservative bias, there’s nothing conservative about abdicating these principles for the sake of political expediency.

Twitter’s decision to begin fact-checking the President’s tweets caused a long-simmering distrust between conservatives and online platforms to boil over late last month. This has led some conservatives to ask whether Section 230, the ‘safe harbour’ law that protects online platforms from certain liability stemming from content posted on their websites by users, is allowing online platforms to unfairly target conservative speech. 

In response to Twitter’s decision, along with an Executive Order released by the President that attacked Section 230, Senator Josh Hawley (R – MO) offered a new bill targeting online platforms, the “Limiting Section 230 Immunity to Good Samaritans Act”. This would require online platforms to engage in “good faith” moderation according to clearly stated terms of service – in effect, restricting Section 230’s protections to online platforms deemed to have done enough to moderate content ‘fairly’.  

While seemingly a sensible standard, if enacted, this approach would violate the First Amendment as an unconstitutional condition to a government benefit, thereby  undermining long-standing conservative principles and the ability of conservatives to be treated fairly online. 

There is established legal precedent that Congress may not grant benefits on conditions that violate Constitutionally-protected rights. In Rumsfeld v. FAIR, the Supreme Court stated that a law that withheld funds from universities that did not allow military recruiters on campus would be unconstitutional if it constrained those universities’ First Amendment rights to free speech. Since the First Amendment protects the right to editorial discretion, including the right of online platforms to make their own decisions on moderation, Congress may not condition Section 230 immunity on platforms taking a certain editorial stance it has dictated. 

Aware of this precedent, the bill attempts to circumvent the obstacle by taking away Section 230 immunity for issues unrelated to anti-conservative bias in moderation. Specifically, Senator Hawley’s bill attempts to condition immunity for platforms on having terms of service for content moderation, and making them subject to lawsuits if they do not act in “good faith” in policing them. 

It’s not even clear that the bill would do what Senator Hawley wants it to. The “good faith” standard only appears to apply to the enforcement of an online platform’s terms of service. It can’t, under the First Amendment, actually dictate what those terms of service say. So an online platform could, in theory, explicitly state in their terms of service that they believe some forms of conservative speech are “hate speech” they will not allow.

Mandating terms of service on content moderation is arguably akin to disclosures like labelling requirements, because it makes clear to platforms’ customers what they’re getting. There are, however, some limitations under the commercial speech doctrine as to what government can require. Under National Institute of Family & Life Advocates v. Becerra, a requirement for terms of service outlining content moderation policies would be upheld unless “unjustified or unduly burdensome.” A disclosure mandate alone would not be unconstitutional. 

But it is clear from the statutory definition of “good faith” that Senator Hawley is trying to overwhelm online platforms with lawsuits on the grounds that they have enforced these rules selectively and therefore not in “good faith”.

These “selective enforcement” lawsuits would make it practically impossible for platforms to moderate content at all, because they would open them up to being sued for any moderation, including moderation  completely unrelated to any purported anti-conservative bias. Any time a YouTuber was aggrieved about a video being pulled down as too sexually explicit, for example, they could file suit and demand that Youtube release information on whether all other similarly situated users were treated the same way. Any time a post was flagged on Facebook, for example for engaging in online bullying or for spreading false information, it could similarly lead to the same situation. 

This would end up requiring courts to act as the arbiter of decency and truth in order to even determine whether online platforms are “selectively enforcing” their terms of service.

Threatening liability for all third-party content is designed to force online platforms to give up moderating content on a perceived political basis. The result will be far less content moderation on a whole range of other areas. It is precisely this scenario that Section 230 was designed to prevent, in order to encourage platforms to moderate things like pornography that would otherwise proliferate on their sites, without exposing themselves to endless legal challenge.

It is likely that this would be unconstitutional as well. Forcing online platforms to choose between exercising their First Amendment rights to editorial discretion and retaining the benefits of Section 230 is exactly what the “unconstitutional conditions” jurisprudence is about. 

This is why conservatives have long argued the government has no business compelling speech. They opposed the “fairness doctrine” which required that radio stations provide a “balanced discussion”, and in practice allowed courts or federal agencies to determine content  until President Reagan overturned it. Later, President Bush appointee and then-FTC Chairman Tim Muris rejected a complaint against Fox News for its “Fair and Balanced” slogan, stating:

I am not aware of any instance in which the Federal Trade Commission has investigated the slogan of a news organization. There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.

And recently conservatives were arguing businesses like Masterpiece Cakeshop should not be compelled to exercise their First Amendment rights against their will. All of these cases demonstrate once the state starts to try to stipulate what views can and cannot be broadcast by private organisations, conservatives will be the ones who suffer.

Senator Hawley’s bill fails to acknowledge this. Worse, it fails to live up to the Constitution, and would trample over the rights to freedom of speech that it gives. Conservatives should reject it.

As the initial shock of the COVID quarantine wanes, the Techlash waxes again bringing with it a raft of renewed legislative proposals to take on Big Tech. Prominent among these is the EARN IT Act (the Act), a bipartisan proposal to create a new national commission responsible for proposing best practices designed to mitigate the proliferation of child sexual abuse material (CSAM) online. The Act’s proposal is seemingly simple, but its fallout would be anything but.

Section 230 of the Communications Decency Act currently provides online services like Facebook and Google with a robust protection from liability that could arise as a result of the behavior of their users. Under the Act, this liability immunity would be conditioned on compliance with “best practices” that are produced by the new commission and adopted by Congress.  

Supporters of the Act believe that the best practices are necessary in order to ensure that platform companies effectively police CSAM. While critics of the Act assert that it is merely a backdoor for law enforcement to achieve its long-sought goal of defeating strong encryption. 

The truth of EARN IT—and how best to police CSAM—is more complicated. Ultimately, Congress needs to be very careful not to exceed its institutional capabilities by allowing the new commission to venture into areas beyond its (and Congress’s) expertise.

More can be done about illegal conduct online

On its face, conditioning Section 230’s liability protections on certain platform conduct is not necessarily objectionable. There is undoubtedly some abuse of services online, and it is also entirely possible that the incentives for finding and policing CSAM are not perfectly aligned with other conflicting incentives private actors face. It is, of course, first the responsibility of the government to prevent crime, but it is also consistent with past practice to expect private actors to assist such policing when feasible. 

By the same token, an immunity shield is necessary in some form to facilitate user generated communications and content at scale. Certainly in 1996 (when Section 230 was enacted), firms facing conflicting liability standards required some degree of immunity in order to launch their services. Today, the control of runaway liability remains important as billions of user interactions take place on platforms daily. Related, the liability shield also operates as a way to promote good samaritan self-policing—a measure that surely helps avoid actual censorship by governments, as opposed to the spurious claims made by those like Senator Hawley.

In this context, the Act is ambiguous. It creates a commission composed of a fairly wide cross-section of interested parties—from law enforcement, to victims, to platforms, to legal and technical experts—to recommend best practices. That hardly seems a bad thing, as more minds considering how to design a uniform approach to controlling CSAM would be beneficial—at least theoretically.

In practice, however, there are real pitfalls to imbuing any group of such thinkers—especially ones selected by political actors—with an actual or de facto final say over such practices. Much of this domain will continue to be mercurial, the rules necessary for one type of platform may not translate well into general principles, and it is possible that a public board will make recommendations that quickly tax Congress’s institutional limits. To the extent possible, Congress should be looking at ways to encourage private firms to work together to develop best practices in light of their unique knowledge about their products and their businesses. 

In fact, Facebook has already begun experimenting with an analogous idea in its recently announced Oversight Board. There, Facebook is developing a governance structure by giving the Oversight Board the ability to review content moderation decisions on the Facebook platform. 

So far as the commission created by the Act works to create best practices that align the incentives of firms with the removal of CSAM, it has a lot to offer. Yet, a better solution than the Act would be for Congress to establish policy that works with the private processes already in development.

Short of a more ideal solution, it is critical, however, that the Act establish the boundaries of the commission’s remit very clearly and keep it from venturing into technical areas outside of its expertise. 

The complicated problem of encryption (and technology)

The Act has a major problem insofar as the commission has a fairly open ended remit to recommend best practices, and this liberality can ultimately result in dangerous unintended consequences.

The Act only calls for two out of nineteen members to have some form of computer science background. A panel of non-technical experts should not design any technology—encryption or otherwise. 

To be sure, there are some interesting proposals to facilitate access to encrypted materials (notably, multi-key escrow systems and self-escrow). But such recommendations are beyond the scope of what the commission can responsibly proffer.

If Congress proceeds with the Act, it should put an explicit prohibition in the law preventing the new commission from recommending rules that would interfere with the design of complex technology, such as by recommending that encryption be weakened to provide access to law enforcement, mandating particular network architectures, or modifying the technical details of data storage.

Congress is right to consider if there is better policy to be had for aligning the incentives of the platforms with the deterrence of CSAM—including possible conditional access to Section 230’s liability shield.But just because there is a policy balance to be struck between policing CSAM and platform liability protection doesn’t mean that the new commission is suited to vetting, adopting and updating technical standards – it clearly isn’t. Conversely, to the extent that encryption and similarly complex technologies could be subject to broad policy change it should be through an explicit and considered democratic process, and not as a by-product of the Act.