Major Major Major Major

The Washington Post today has several articles about the incoming administration’s, and new congress’s, thoughts and priorities on regulating tech companies. If you’re interested in this–and you should be if you’re reading this on, say, the Internet–I recommend checking them out, or at least reading the overview. Silicon Valley braces for tougher regulation in Biden’s new Washington:

Democratic leaders for years have proposed a bevy of new legislation to shrink Silicon Valley’s corporate footprint, restrict its insatiable appetite for data and stop the spread of falsehoods online. But the party’s calls for regulation have grown more urgent in the days since Biden won the presidency, his party took control of the House and the Senate, and Trump and his allies further exposed the risks of a largely unregulated Web.

[…]“I think for the Internet industry, in particular, it’s going to be tough sledding for the next two years at least,” predicted Rob Atkinson, the president of the Information Technology and Innovation Foundation, a think tank that counts companies including Google and Microsoft on its board.

The accompanying articles drill down into “gig work” reform, making contractors into employees; net neutrality, the policy that internet service providers must treat all traffic equally regardless of origin or destination; antitrust; and Section 230 reform.

Of these, I think net neutrality will obviously happen, and gig work reform will probably not. Antitrust I can’t speak to. But Section 230 reform, well, damn near every politician wants a bite at that apple. I hate to both sides this, but in terms of the literal words that come out of their mouths, it’s sort of true: Trump vetoed the NDAA because he wanted a version that repealed Section 230 outright; Biden spoke in 2020 about how we should repeal Section 230 outright.

What is Section 230, you ask? I have a primer here. tl;dr: Section 230 of the Communications Decency Act says that tech companies aren’t liable for content posted by their users, and can moderate it as they choose. You can comment about violent insurrection here without us being liable; we have the right to ban your ass.

The WaPo Article does a good job outlining the power players in this coming fight. The person to really keep an eye on is Brian Schatz (D-HI), chair of the Internet subcommittee. His current legislation, the Platform Accountability and Consumer Transparency (PACT) Act, is offered in good faith, and sounds nice on the surface, but has a number of significant flaws. The Electronic Frontier Foundation has a good explainer:

The PACT Act ends Section 230(c)(1)’s immunity for user-generated content if services fail to remove the material upon receiving a notice claiming that a court declared it illegal. Platforms with more than a million monthly users or that have more than $25 million in annual revenue have to respond to these takedown requests and remove the material within 24 hours. Smaller platforms must remove the materials “within a reasonable period of time based on size and capacity of provider.”

[…]On first blush, this seems uncontroversial—after all, why should services enjoy special immunity for continuing to host content that is deemed unlawful or is otherwise unprotected by the First Amendment? The problem is that the PACT Act poorly defines what qualifies as a court order, fails to provide strong protections, and sets smaller platforms up for even greater litigation risks than their larger competitors.

I will refer you to the link if you’d like to learn more. One very important point is that this, like many regulations, would benefit entrenched companies and make it harder for competitors to form and grow. There are ways to write regulations that minimize this, and we need to be very careful that we are doing so, unless we want Facebook and Twitter to be even more powerful. Indeed, Facebook is pushing for many of these regulations, for this reason. So if you find yourself on their side, maybe reconsider.

“Oh please don’t throw us into the complicated briar patch you’ll need to pay our lobbyists to help plant. We would just be soooo sad if you created regulations only large companies had the resources to follow!” pic.twitter.com/7lmHKGn2Ya

— ☃️ Tynan 🌨 (@TynanPants) January 18, 2021

Twitter, by contrast, is literally invested in creating and elevating open standards for distributed social networks that would limit the coercive power of companies like Twitter. By all accounts Dorsey didn’t ask for this power and doesn’t want it. TechCrunch has a good writeup of where they are in the process, as well as a general discussion of what the heck I’m talking about. (You can also read my own post on distributed social networks.)

Section 230 reform will need sixty votes to pass, which will either doom it or mean we need to fold in Republican priorities, such as legally mandating that Republicans can say whatever the hell they want, anywhere, at any time. I wish I were joking:

Social media is our generation’s public forum. It ought to be subject to the same protections provided to all public forums.

I am calling for First Amendment protections to be applied to this New Town Square.

Censorship of elected officials by unelected elites is UNAMERICAN!

— Madison Cawthorn (@CawthornforNC) January 9, 2021

If we’re negotiating with people like this… maybe we’ll get lucky and nothing will happen. I don’t know, what do you folks think?

Tech Reform Watch: Pre-Inauguration EditionPost + Comments (99)

Section 230 of the Communications Decency Act has been in the news a lot lately. Conservatives hate it!

As I told @jack, by labeling posts, @twitter is taking a policy position. When taking a policy position, you’re acting as a publisher (even under current law). #BigTech can’t pretend to not be a publisher & get special benefits under #Section230.https://t.co/I3yebollh1

— Senator Ted Cruz (@SenTedCruz) December 7, 2020

Liberals hate it!

It is now broadly recognized that Joe Biden doesn’t like Section 230 and has repeatedly shown he doesn’t understand what it does. Multiple people keep insisting to me, however, that once he becomes president, his actual tech policy experts will understand the law better, and move Biden away from his nonsensical claim that he wishes to “repeal” the law.

In a move that is not very encouraging, Biden’s top tech policy advisor, Bruce Reed, along with Common Sense Media’s Jim Steyer, have published a bizarre and misleading “but think of the children!” attack on Section 230 that misunderstands the law, misunderstands how it impacts kids, and which suggests incredibly dangerous changes to Section 230. If this is the kind of policy recommendations we’re to expect over the next four years, the need to defend Section 230 is going to remain pretty much the same as it’s been over the last few years.

Well… not all liberals.

Just look at the #BlackLivesMatter movement. So many cases of unjust use of force against Black Americans have come to light via videos on social media. Not a single #MeToo post accusing powerful people of wrongdoing would be allowed on a moderated platform without 230.

— Ron Wyden (@RonWyden) December 11, 2020

Jeez, this must be a really complicated law if nobody can even agree on what it says. What’s that? It’s not? This is the only part that isn’t basically statements of principles, a glossary, or footnotes?

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

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.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) 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; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]

(d) Obligations of interactive computer service

A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

People are wrong about this law in myriad ways. The most popular misconception seems to be that websites must act as “platforms, not publishers” if they want this protection; making editorial decisions, this argument goes, turns them into publishers. You will notice that this does not appear in the law.

It is very, very straightforward. A website–ANY website–which allows user-generated content is (broadly speaking) not liable for that content and can moderate it however the hell they want. In other words, Section 230 grants the people who run any website the right, under the first amendment, to control what happens on their own property, and shields them from liability should a user, without the site’s knowledge, post illegal content.

Many of the suggested “reforms”, such as those by butthurt conservatives, are offered in bad faith. But even legislators we like more, such as Brian Schatz (D-HI), are introducing bills that would compel censorship and lead to regulatory capture by the largest businesses, like Facebook and Twitter. (Do you want Facebook stamping on a human face forever? Because this is how you get it.)

What would a world without Section 230 look like? We actually have a great case study. In 2018, a package known as FOSTA-SESTA was signed into law, with the stated intent of cutting down on online sex trafficking. It removes Section 230 protections for user-posted content found to be promoting “sex trafficking”. This opened websites up to huge potential liabilities, mostly around advertisements for sex work. Rather than figure out how to proactively prevent this content from being posted, sites like Craigslist simply shut down their entire Personals section, and sites like Backpage simply shut down entirely. This probably does not decrease the amount of sex trafficking, but, as the DOJ argued at the time, probably does make it harder to detect and prosecute. This doubtless also contributed to Tumblr’s decision to ban all adult content (as well as “female-presenting nipples”), and Facebook’s decision to start shutting down communities that kinda sorta hint at porn or sex work, even in jest. Needless to say this has been to the detriment of online communities for sexual minorities.

So, keep an eye on this. If you like commenting on political blogs, it may soon be relevant to you.

(But don’t take my word for it. TechDirt has a wonderful post going over all this: Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act)

Let’s Talk About Section 230 of the CDA (Or: Why You’re Allowed to Comment on This Post)Post + Comments (52)