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literal words that come out of their mouths, it’s sort of true: Trump vetoed the NDAA because he wanted a version that repealed Section 230 outright; Biden spoke in 2020 about how we should repeal Section 230 outright.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?