US Senators Hold Hearings on Future of Section 230

The US has held hearings on the future of Section 230. Many are blasting the hearings as unproductive among other things.

The apparent war on the Internet is continuing in the US. Last week, the Federal Communication Commission (FCC) laid out their reasoning on why they have the power to gut the law. The reasoning has been blasted by critics as hypocritical by critics. This is because the FCC said that it does not have the power to regulate Internet companies when they killed network neutrality. In a complete about face, the FCC is saying now that it absolutely has the power to regulate Internet companies. Many point out that these moves are more meant to appease US president Donald Trump instead.

As many know, Section 230 offers a certain degree of legal immunity to online sites. If a user posts something illegal, then the site itself is not automatically liable for the publication of said content. This has been a pillar for online free speech for more than a decade. All this time, it has been completely non-problematic and working well for fueling innovation. Since it’s good for America, naturally, US lawmakers, alongside Trump, want to kill it.

Hearings have taken place with senators on the future of Section 230. As Bloomberg notes, it was a partisan affair:

On Wednesday, Republican senators laid into the chief executive officers of Facebook Inc., Twitter Inc. and Google for anti-conservative bias. They asked pointed questions like: How many of the employees and content moderators are liberal versus conservative? And how many high-profile posts from Democrats have they removed, versus posts from Republicans? (They don’t keep data on either question, the CEOs said.)

Senate Democrats criticized their colleagues for bullying the companies, saying the hearing was a transparent effort to pressure the online platforms to make calls favorable to President Donald Trump days before the critical election. They had a point. However, for months, the Democrats have been pressuring companies, too. They’ve repeatedly said the platforms aren’t doing enough to correct misinformation about voting.

Whatever happens during the U.S. election next week, the political party that loses the presidency is likely to lay the blame at least partly at the feet of the country’s social media giants—either for doing too much or not doing enough. That means scenes like Wednesday’s hearing battering the tech CEOs will remain a favored political pastime for the foreseeable future.

The hearings have already been blasted as unproductive. A CNN op-ed called the hearings petty as well:

On Wednesday, Facebook, Google and Twitter’s chief executives appeared before the Senate Commerce Committee. The purpose of the hearing was, ostensibly, a discussion of possible changes to a law that grants tech platforms legal immunity for their content moderation decisions.

Instead what the public saw was a highly partisan display that had nearly as much sniping by lawmakers at one another as questions directed at the CEOs. It was a hearing virtually devoid of substance and that barely touched on matters of policy, which allowed the executives to run out the clock with promises of future transparency that will have almost no bearing on events today.

At times, despite its lofty stated ambitions, the hearing devolved into the petty and personal.
Tennessee Republican Sen. Marsha Blackburn asked Google CEO Sundar Pichai if an employee who had criticized her had been fired.

“He has had very unkind things to say about me,” Blackburn said, “and I was just wondering if you all had still kept him working there.”

While there were personal attacks being launched at each other, there was one aspect that is catching a lot of observers attention: Facebook’s response to the hearing. Some are saying that Facebook has thrown the entire Internet under the bus. From TechDirt:

But here’s the real problem. Whatever nuance there is to be discussed here, whatever recognition of the problems this will cause, the following paragraph will be seen as declaring open season on Section 230 because “even Facebook supports changing the law.”

Section 230 made it possible for every major internet service to be built and ensured important values like free expression and openness were part of how platforms operate. Changing it is a significant decision. However, I believe Congress should update the law to make sure it’s working as intended. We support the ideas around transparency and industry collaboration that are being discussed in some of the current bipartisan proposals, and I look forward to a meaningful dialogue about how we might update the law to deal with the problems we face today.

This is nonsense. It is working as intended. It’s allowing companies to make their own decisions, and to experiment with different moderation regimes. That many people are unhappy with those choices is the very nature of content moderation. It’s not like Congress is going to step in and create rules that work any better. It will only create rules that work worse.

At Facebook, we don’t think tech companies should be making so many decisions about these important issues alone. I believe we need a more active role for governments and regulators, which is why in March last year I called for regulation on harmful content, privacy, elections, and data portability. We stand ready to work with Congress on what regulation could look like in these areas. By updating the rules for the internet, we can preserve what’s best about it—the freedom for people to express themselves and for entrepreneurs to build new things—while also protecting society from broader harms. I would encourage this Committee and other stakeholders to make sure that any changes do not have unintended consequences that stifle expression or impede innovation.

And, yes, he’s repeating what he’s said before, knowing full fucking well that any regulations that Congress puts in place will simply serve to lock in Facebook’s position. Facebook can handle the compliance costs. The upstart companies that might disrupt Facebook will have a much harder time.

Make no mistake about it: this is Mark Zuckerberg pulling up the innovation ladder he climbed behind him.

This observation was echoed on The Verge:

Facebook took a different tack. “The debate about Section 230 shows that people of all political persuasions are unhappy with the status quo. People want to know that companies are taking responsibility for combatting harmful content — especially illegal activity — on their platforms. They want to know that when platforms remove content, they are doing so fairly and transparently. And they want to make sure that platforms are held accountable,” Zuckerberg said in opening testimony. “Changing it is a significant decision. However, I believe Congress should update the law to make sure it’s working as intended.”

Zuckerberg has broadly called for more internet regulation over the past few years. But until now, Facebook has largely either stayed quiet on Section 230 or critiqued specific proposals. In March, it warned that the EARN IT Act could be used to roll back encryption and user privacy. In June, it said a White House executive order would “[expose] companies to potential liability for everything that billions of people around the world say.”

Now, Zuckerberg says “we support the ideas around transparency and industry collaboration that are being discussed in some of the current bipartisan proposals.” While he didn’t name a specific bill, his statements most closely match the PACT Act, which was introduced in June as a bipartisan “scalpel” instead of a regulatory hammer. Under the PACT Act, companies would have to disclose their moderation standards and establish a formal takedown appeals system. They would also have to remove court-ordered illegal content within 24 hours.

If Facebook starts lobbying for the PACT Act, that’s potentially a big deal. Facebook was a key backer of FOSTA-SESTA, a bill that removed Section 230 protections for content violating anti-prostitution laws. That bill became law in 2018, and Facebook itself was fairly well-equipped to deal with the changes — while smaller sites like Craigslist got hit hard. The PACT Act could have similar effects. Facebook already has a legion of moderators and a policy team that releases detailed transparency reports. A smaller site could have far fewer resources. The PACT Act has a “small business provider” exception, but it’s a fairly narrow one.

While the hearings themselves may have been largely unproductive, it did reveal that Facebook is attempting to make a power play at the expense of the rest of the Internet. The fact that Facebook seems to be attempting to quash all competition should be worrying for a lot of people. The open Internet is already being hamstrung in the US over the lack of network neutrality. With Facebook helping to speed up the process by gutting Section 230, this should serve as a warning signal that there is a threat that even more damage can be done by lawmakers as well.

Drew Wilson on Twitter: @icecube85 and Facebook.



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