Is Section 230 of the CDA due for a revamp?

Twitter may have pushed just a tad too hard this time. Yes, Tweets are subject to its terms of use. But publicly scrapping with the President of the United States over a hot-button political issue? Really?

Trump’s response came in the form of an executive order taking aim at section 230 of the Communications Decency Act (CDA), probably the most revered legal provision governing the Internet:

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.

The idea, in 1996, was to promote free speech online by not subjugating websites to the liabilities (defamation, copyright infringement, etc.) content publishers usually have. But can a tech platform become so powerful that having the full discretion to control the content it displays itself becomes an instrument of censorship?

The political views of staff at big tech companies are notoriously uniform. Studies have consistently shown that their political contributions are pretty much reserved for one side of the aisle. Of the $15 million they gave in contributions in 2018, Trump received just $2,400. A Google executive was even secretly filmed admitting the tech giant will tweak its algorithms to prevent “the next Trump situation” in 2020. Intentional or not, they’ve become major players in the increasingly acrimonious culture wars. No wonder they want to be left alone and moderate in peace. Let’s call out the obvious: some level of activism is clearly part of the game here.

Maybe that’s why, when it comes to Section 230, otherwise reasonable people begin speaking as if violins played in the background.

It’s been called “the 26 words that created the Internet” (maybe technology had something to do with it?).

Some have argued it’s “hard to imagine the Internet without it” (maybe it would just be a different Internet?).

In truth, it was adopted a quarter of a century ago to enable a very different Internet than our 2020 version – super decentralized, free, almost anarchic. It was certainly not intended to empower a quirky censorship machine wielded by giants. Today, we take it for granted that Google, Facebook and Twitter censor political speech, Coronavirus opinions, online games, and thousands of content pieces by regular folks for obscure reasons. That the Internet would morph into a media space infinitely more centralized than the TV and newspaper empires of old could never have occurred to the drafters of the CDA in 1996.

While delivered in Trump’s usual bombastic way, the order’s actually pretty level-headed in substance. It calls for the “good faith” requirement of section 230 to be “clarified”, and for basic oversight of this by the FCC. Many Democrats have recently called for similar measures. A Pew survey found that 72% of Americans (including a majority of Democrats) believe tech companies “intentionally censor political viewpoints they find objectionable”. Trump’s outsized persona shouldn’t be the focus here. This order accelerates a discussion that’s probably way overdue – regardless of one’s political stripes.

The fundamental question is and remains: should three tech giants with largely the same world view get to decide what is allowable speech for the vast majority of social media discourse online? The doublespeak from Facebook – like its spokeswoman Liz Bouchard warning that an amendment of section 230 would “restrict speech” – is remarkable. If that’s really the concern, why not just abide by the free speech standards provided by the Constitution? Why fight so hard to maintain the right to limit speech far, far more restrictively?

Tech giants aren’t the victims of censorship: they’ve become its main perpetrators. They aren’t fighting to keep the Internet freewheeling and diverse, they’re fighting for the power to be the ones to control its airwaves. When private companies start controlling the nature of speech, an alarm bell should be clear for all civil rights advocates to hear.

Trump’s motives may have been political. But the stakes here are way deeper. And before this order, we were drifting along without taking them nearly seriously enough.

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