The United States, Section 230, and Big Tech

The United States, Section 230, and Big Tech

There has been increasing bipartisan scrutiny over how to regulate Big Tech, and one prominent issue is whether to repeal Section 230 which gives social media companies sweeping immunity over the content published on their sites. With growing pressure to mitigate the risks posed by social media, it is worth considering why Section 230 is important, the risks associated with the repeal, and the likelihood something will happen in the new administration.

In one of his last acts as president, Trump attempted to block the passage of the $740 billion National Defense Authorization Act unless it repealed Section 230 of the Communications Decency Act. The bill, which is passed annually to allocate military funds, went to the Senate where a bipartisan majority was able to override Trump’s veto without the alteration. Though ultimately a failed political maneuver to reign in Big Tech, the incident highlighted the mounting political pressure to put guardrails around social media platforms and determine whether Section 230 has outlived its purpose.

What is Section 230 and why is it so important?

Section 230 of the 1996 Communications Decency Act, sometimes referred to as the “twenty-six words that created the internet,” acts as a liability shield for online platforms for any content published by their users. Whereas news organizations need to meet certain regulatory and legal standards for the content they publish, social media platforms have enjoyed sweeping immunity thanks to the decades-old law. The US government attributes part of the success of their digital economy, most notably the Big Tech giants, to the relatively laissez-faire regulatory approach.

Critics of social media companies ultimately point to the power tech platforms have to amplify and proliferate conspiracy theories or harmful speech without consequences. These detractors suggest that the large user base coupled with the profit incentive to keep users engaged is a recipe for harm to the country. Other tangential issues, such as the understudied effects of social media on mental health and well-being, and the worrisome civic impact of the decline in local journalism correlated with the rise in social media, have further amplified calls to reform Section 230.

Changes to the law could significantly alter how social media companies operate. Firstly, it would likely create a climate where companies were more fearful of being sued, meaning they would have to enforce stricter moderation policies and control more vigorously what gets posted. For example, Twitter or YouTube might implement a pre-approval process for content posted by certain users. There are additional concerns that increased regulation over content will impede First Amendment rights, and that any restrictions on free expression would represent an ethical trade-off. Furthermore, some argue that repealing Section 230 would impede innovation, as only companies with sufficient funds and legal teams would be able to defend themselves against potential lawsuits, creating a barrier to entry for startups.

Increased Big Tech Scrutiny

Trump’s attempt to end Section 230 follows a year of increased scrutiny on Big Tech. In addition to hearings on antitrust matters and major lawsuits filed against Google and Facebook, Section 230 has similarly come under a microscope in Congress. In October last year, the Senate Committee on Commerce, Science & Transportation held a hearing with the CEOs of Twitter, Alphabet, and Facebook to examine if Section 230 had given these companies a “free pass” on their alleged bad behavior. This was followed by a subsequent Senate Judiciary Committee hearing about social media’s power over the 2020 election, revisiting the question of Section 230.

The critical part of these hearings was the bipartisan consensus among lawmakers that Section 230 needed legal review. Though far short of advocating for eliminating Section 230, Jack Dorsey, CEO of Twitter, and Mark Zuckerberg, CEO of Facebook, agreed in their testimonies that the law needed amending, but warned about the pitfalls of too stringent regulation. If social media companies become liable for the content published by their users, it could have tremendous implications for the digital economy.

Partisan perspectives

However, while there is bipartisan agreement in Congress that something should be done around Section 230, it is far from agreeing on what should be done. Particularly, there is a large divide between Republicans and Democrats on why Section 230 should be changed. Typically, Democrats have focused on social media’s harmful ability to disseminate misinformation to mass audiences, pointing to the “powerful megaphone” Trump and his allies have been handed to proliferate conspiracy theories about the election.

Republicans’ arguments have centered on the idea that social media companies are biased in their censorship of conservative voices. To illustrate, Twitter and Facebook placed warning labels on then-President Trump’s election misinformation posts, but left up Ayatollah Khamenei’s harmful tweets about Israel. A number of Republican lawmakers loudened their calls to repeal Section 230 as a reaction to Trump’s social media ban following the insurrection on Capitol. In a twist of irony, repealing Section 230 would actually force social media companies to increase their content moderation, making it far likelier Trump’s false claims about the election, and many of his followers who advocated for violence, would have been nixed from the sites much earlier.

The new Biden administration looks serious about confronting Section 230. In an interview with the New York Times during the primaries, Biden said Section 230 should be revoked. While the new administration has not outlined its approach to Section 230 since the election, it is highly plausible Biden took a strong stance to give himself more negotiating power. Regardless, Biden will have to work with Congress to codify any changes in law, meaning any changes to Section 230 will require navigating these partisan divides.

Taken together, these factors suggest that any policy or legal remedies to Section 230 will not be straightforward nor easy, despite the broad political consensus that there needs to be reform. Rather than abandon Section 230, it is more likely that lawmakers will pursue more piecemeal amendments to the Communications Decency Act. For example, requiring companies to publish their moderation policies and processes, create more open or straightforward appeals processes for users, or promote algorithmic standards around automated review processes.

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