On Wednesday, U.S. Senator Josh Hawley, R-Mo., introduced the Ending Support for the Internet Act, that would remove section 230 immunity for big tech companies (more than 30 million active monthly users in the United States, 300 million active monthly users worldwide, or had more than $500 million in global revenue annually) under the Communications Decency Act (CDA).

Hawley says companies would have to agree to an external audit of their algorithms and content removal practices every two years to prove they are politically neutral to earn a certification that provides them immunity under the CDA.

“With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” Hawley said. “Unfortunately, and unsurprisingly, big tech has failed to hold up its end of the bargain.”

“There’s a growing list of evidence that shows big tech companies making editorial decisions to censor viewpoints they disagree with. Even worse, the entire process is shrouded in secrecy because these companies refuse to make their protocols public. This legislation simply states that if the tech giants want to keep their government-granted immunity, they must bring transparency and accountability to their editorial processes and prove that they don’t discriminate,” he added.

Section 230 of the CDA, that passed in 1996, protects covered companies from liability for illegal content posted by third parties.

It states that “(n)o 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.”

They are viewed as a neutral platform with a relevant exception:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

So Facebook, Twitter, et. al. can censor pornography from their platforms for instance. They can also ban users who harass others. They can do all of this and still have immunity under section 230 of the CDA.

I think there’s a general consensus that the big tech companies have engaged in censorship and that censorship mostly targets those on the right. The most egregious example would be Pinterest’s treatment of Live Action, a pro-life group that offers undercover videos of abortion facilities. Pinterest permanently banned them from spreading “harmful misinformation.” Prior to this, the social media company appeared to have intentionally added Live Action’s website to a list of blocked pornography sites.

Facebook and Twitter also blocked ads from Live Action, as well as, Susan B. Anthony List, another pro-life group.

Tech giants also have de-platformed people. Then there is the shadow banning, temporary suspensions, deleted posts, and throttling that conservatives disproportionately endure as Richard Hanania pointed out after examining Twitter’s practices.

He wrote:

Until now, conservatives have had to rely on anecdotes to make their case. To see whether there is an empirical basis for such claims, I decided to look into the issue of Twitter bias by putting together a database of prominent, politically active users who are known to have been temporarily or permanently suspended from the platform. My results make it difficult to take claims of political neutrality seriously. Of 22 prominent, politically active individuals who are known to have been suspended since 2005 and who expressed a preference in the 2016 U.S. presidential election, 21 supported Donald Trump.

This censorship of free speech is thoroughly illiberal, and it concerns me that people on the left, who once championed civil liberties like free speech, are mainly quiet.

This is a problem, but I am not certain that Hawley’s bill is the fix we need. I am not arguing that we do nothing, but I do have three primary concerns:

1. Tech companies have to prove a negative.

The Ending Support for Internet Censorship Act requires big tech companies to prove they use politically neutral moderation practices before they can receive an “immunity certification” from the Federal Trade Commission.

A tech company has to prove “to the Commission by clear and convincing evidence that the provider does not (and, during the 2-year period preceding the date on which the provider submits the application for certification, did not) moderate information provided by other information content providers in a politically biased manner.”

So instead of the federal government proving that a tech company violated this standard, the tech company to prove its innocence before it can receive the immunity it once had under the law.

2. Federal government injecting itself into HR decisions.

The bill offers two exceptions for a company’s politically-biased moderation. The first is if it is a business necessity. I can’t visualize those circumstances and, frankly, this could be a loophole for big tech companies to use to get around censorship. The second exception is if the action was taken by a rogue employee.

If that is the case for a covered company to maintain its immunity certification the legislation states that the company must disclose this information and then they must terminate the employee.

Think about this; Hawley’s bill gives the federal government power to coerce a company to fire an employee.

3. How will this be enforced under different administrations?

Of course, a friendly administration will always govern us, right?

I don’t think any reasonable person believes that.

The bill sets a high standard for evidence provided in the certification process. It has to be “clear and convincing.” What makes it clear? Who decides what is clear? Who do they have to convince? The five commissioners who are political appointees that make up the Federal Trade Commission of which a majority can be from the same political party, they decide whether a company presented “clear and convincing” evidence.

Methinks the standard for what is “clear and convincing” may change every four to eight years.

Also, Hawley says that the algorithms and content removal practices would have to be submitted, but the bill’s language does not say that. It does not outline what makes up the “clear and convincing evidence” companies have to present every two years. This missing language means that rules, not the law, determine the make-up of the evidence which will expand the administrative state. If we’ve learned nothing from the Obama administration it is how rules can effectively change the administration of law.

Surely a President Bernie Sanders, Joe Biden, or Kamala Harris will administer this law the same way the Trump administration will administer it, right? If you believe that I have some swampland in Arizona to sell you.

Conclusion

I admit that out of everything that Congress could do to address this problem a change to section 230 of the CDA is the least intrusive. I think a minor tweak in the law could provide a solution.

Instead of the law reading this way: “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

It could be amended to read this way: “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, or harassing whether or not such material is constitutionally protected.”

Remove “otherwise objectionable” as it is not defined in the law and it is overly broad.

Another obvious fix would be to grant big tech companies with immunity and then require the federal government to prove using “clear and convincing evidence” that they violated the CDA’s standards before immunity is removed.

The bill, as written, allows the federal government to decide what makes up political censorship and the evidence required to disprove it can easily change. Do we want to give the Federal Trade Commission that kind of power? I don’t trust big tech, but I don’t trust big government either.

2 comments
  1. Im not sure I agree with them having the exemption at all. Other forms of communication don’t, why should they? They should be open to being sued just like the media in general. They should not have any special exemption. Let the cases be tried in the courts before a jury.

    1. Consider that the exemption is for content they do not create (comments, social media posts) and items they do not edit and approve before they are published. So this is different than the media in general. For example, a newspaper is liable for what they publish, but not the comments that appear on their website.

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