No, Revoking Section 230 Would Not 'Save Democracy'

from the what-is-wrong-with-you-people? dept

Steven Hill, the former policy director with the Center for Humane Technologies -- the non-profit that everyone seems to look to as some sort of knowledgeable source on "anti-Big Tech" talking points -- has come out with one of the most ridiculous op-eds regarding Section 230. And I say that as someone who seems to wade through a dozen or so terrible Section 230 op-eds every day. The title alone, should already make you nervous, but honestly this piece is so bad, so wrong, and so disconnected from reality, it completely undermines the Center for Humane Technology's credibility, even though this guy is no longer associated with them.

The piece is titled: Biden should revoke Section 230 before we lose our democracy, which is just bizarre framing, but I'm open-minded enough to give any piece about Section 230 at least a chance to make its arguments.

Of course, it starts off on the wrong foot since, you know, Biden literally cannot revoke Section 230. That's not how any of this works. You'd think that at least someone would point out that the President doesn't get to just revoke laws that Congress passed and were signed into law. That's just not how any of it works. But... maybe it's just a clueless editor at the Chicago Tribune and the article itself is better... Or maybe not.

The 1st half of the article is basically one long "correlation / not causation" error. It talks about how we now have big internet companies and before we didn't -- and now we also have Trumpism, and before we didn't. Ergo, the theory goes, big tech is somehow responsible for Trumpism. There is not even any attempt to logically connect the two, it's just stated as if it's obvious:

Since the birth of the Big Tech media platforms 15 years ago, democracies around the world have been subjected to a grand experiment: Can a nation’s news and information infrastructure, which is the lifeblood of any democracy, be dependent on digital technologies that allow a global free speech zone of unlimited audience size, combined with algorithmic (nonhuman) curation of massive volumes of mis/disinformation, that can be spread with unprecedented ease and reach?

The evidence has become frighteningly clear that this experiment has veered off course, like a Frankenstein monster marauding across the landscape.

Hill seems totally unaware that we've gone through other periods in history in which nationalists/fascists/populists have become popular and taken over countries. I don't remember social media being to blame for Europe in the 1930s, but maybe I missed it in my history books.

But, even if this was accurate (and it's not), it's still not clear Section 230 has anything to do with any of this (because it doesn't, even in this fantasy world in which social media is responsible for Trumpism/nationalism). The connection to 230, like his connection between social media and growing nationalism is just some random weak correlation bullshit: these companies like Section 230, ergo, any bad things I think have come from these companies, must be the fault of Section 230.

Notably, of course, the essay makes no effort to engage with what problem he's actually trying to solve other than hand-wavey "threats to democracy," nor any attempt to explore how Section 230 works or what role it has here. It just seems to assume that if you removed Section 230, these non-defined problems would be fix.

It is time to push reset in a major way. President Joe Biden should start by revoking Section 230 of 1996′s Communications Decency Act. That’s the law that grants Big Tech Media “blank check” immunity for the mass content that is published and broadcast across their platforms. Revoking Section 230 is not a perfect solution, but it would make these companies somewhat more responsible, deliberative and potentially liable for the worst of their toxic content, including illegal content. Just like traditional media is liable.

No, Steven, that's not how any of this works. They would be "liable" for what, exactly? What is illegal about "toxic" content? What toxic content violates the law, that would somehow make the platforms liable? What is the actual cause of action? He doesn't answer that because the answer is none, whatsoever.

Also it's an ignorant fool's pipedream to believe that removing Section 230 would make companies "more responsible" or "deliberative." How do I know? Because unlike Steven, I actually study this stuff, and look at other areas of the law and the world where they don't have Section 230. For example, even in the US, we already have the DMCA for copyright, which has a regime (notice-and-takedown) that is what most people assume would develop in a world absent Section 230. And how's that working out? Do we see platforms dealing with user-generated content being "more responsible and deliberate" regarding copyright claims?

[insert uproarious laughter here]

No, of course not. What we have instead are companies who are quick to pull down all sorts of perfectly legitimate content to avoid any threat of liability. They practically knock themselves over to takedown content. And studies have shown that a huge number of DMCA takedowns are abusive and not about legitimate copyright claims. Remove 230 and we'll get a lot more of that, and a huge amount of stifling of perfectly fine speech based on a legalistic heckler's veto.

Why do newspapers like the Chicago Tribune let people who clearly have no understanding of this issue write op-eds for them?

Of course, immediately after that Hill recognizes that it wasn't social media that incited the mob to invade the Capitol, but the President, and admits that his own proposed solution is really kinda... not going to help.

But let’s be clear: Some of the worst past outrages would not likely be affected by 230′s revocation. While President Donald Trump’s inciting speech to the mob about a stolen election was false and provocative, other media outlets publish untrue nonsense all the time. It would be difficult to prove legally that any particular individuals or institutions were harmed or motivated by the president’s many outrageous statements.

So revoking Section 230 will likely not have as much impact as its proponents wish or its critics fear.

So then why did you write a whole essay calling for the revocation when you admit it won't actually work?

Then he switches arguments, like he's a Twitter troll and people have called him out for not knowing what he's talking about. Instead of talking about 230, he jumps to another dumb argument: that internet companies should be regulated like public utilities.

The Biden administration should treat these companies more like investor-owned utilities, as the U.S. previously did with telephone, railroad and power companies. (Facebook founder Mark Zuckerberg has suggested such an approach.)

As utilities, they would be guided by a digital license — just like traditional bricks-and-mortar companies must apply for various licenses and permits — that defines the rules and regulations of the business model according to a “duty of care” obligation, a kind of Hippocratic oath that says “first, do no harm.”

That... is also not how any of this works. First of all, utilities tend to have "must carry" rules, which would do the opposite of what Hill himself claimed was the reason we needed 230 in the first place! Second of all, the entire point of having utilities is when you have natural monopolies over commodity style, non-differentiated products. That's not true of social media. Third, if they were regulated by the government in the manner that Hill seems to want, you'd run into serious state actor problems, potentially making any "duty of care" obligations to be subject to a 1st Amendment analysis, meaning that all of the speech Hill wants them to take down to "protect democracy" would have to be left up because it's mostly protected by the 1st Amendment.

This isn't just an ignorant argument from someone who doesn't understand the issues. It's a self-contradicting one!

And then he totally shifts arguments again!

One abuse that is ripe for stricter rules is “data grabs” of users’ personal info. These companies never asked for permission to start sucking up our private data, or to track our physical locations, or mass collect every “like,” “share” and “follow” into psychographic profiles of each user that can be targeted and manipulated by advertisers and bad political actors. The platforms started that sneaky practice secretly, forging their destructive brand of “surveillance capitalism.”

Surveillance capitalism! Drink! So he's gone from a "they've allowed bad people online" argument, to "they're a utility" argument (which contradicts the first argument) to now a privacy argument... which has nothing at all to do with Section 230.

Why would anyone ever trust this guy to opine on anything related to this subject?

These companies’ frequent outrages against our humanity are supposedly the price we must pay for being able to post our summer vacation and new puppy pics to our “friends,” or for political dissidents and whistleblowers to alert the world to their just causes. Those are all important uses, but the price paid is very high. We can do better.

I think the Chicago Tribune can do a lot better and maybe find someone who actually knows what they're talking about to opine on this stuff?

Though, at least, the paper did juxtapose this utter dumpster fire of an op-ed with a much better one from Will Duffield talking about the dangers of repealing Section 230, but it's stunning that the first one made it to print at all.

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Filed Under: democracy, joe biden, privacy, section 230, steven hill
Companies: center for humane technologies

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  1. This comment has been flagged by the community. Click here to show it
    JJ Mendoza (profile), 1 Feb 2021 @ 2:56pm

    Stepehn T. Stone enters the game

    Ah hah, Steven T. Stone enters the game. And who might you be sir, rushing to the defense of Masnick and Tech Dirt? Or are you actually Masnick himself (since you seem to be accusing people of masquerading as others)? You have the same sneer and snide-filled style. One thing you have going for you that Masnick did not is brevity. You succinctly outlined, at least, what he was having so much trouble articulating: his fears for what will happen if 230 is revoked. As you wrote: “Either sites would overmoderate speech (which would silence a lot more speech than you might think), undermoderate speech (which would end up chasing decent people off platforms and create another “Worst People Problem” platform), or stop accepting third-party speech altogether.”

    You and Mr. Masnick put yourself out there as “experts”, but even a layperson’s understanding of these matters knows that much speech on digital platforms is already protected by the First Amendment. So the real question is: what additional legal protections does Section 230 provide, beyond the First Amendment? And is it necessary?

    Mostly it provides protection for what is often called “illegal speech,” and also for “libelous speech.” The First Amendment does not protect those, but Section 230 does. In the US context, illegal speech has to do with things like child pornography, incitement to violence (crying “fire” in a crowded theater etc.), hate speech, which together make up a fairly narrow class of speech (in places like Germany, “illegal speech” has a slightly broader definition, due to its Nazi past). The First Amendment also has more limited protections for “commercial speech,” such as advertising, and Section 230 provides some additional protection for that.

    So revoking Section 230 really is about whether the platforms will be held responsible for illegal speech, libelous speech, and for when platforms' algorithms accept advertisements that veer into speech that is either illegal or libelous.

    That’s it. That’s a pretty narrow range on the broad spectrum of “free speech” that you and Masnick are losing your knickers over. In fact, as I read Hill’s op-ed, I think he is probably right that “revoking Section 230 will likely not have as much impact as its proponents wish or its critics fear.”

    Instead your fears are highly speculative in nature -- about sites over moderating, under moderating or refusing to accept third-party speech altogether. I’ll take the last first.

    The sites will never refuse accepting third-party speech because that’s how they earn their profits. Whether the third-party speech is “user generated content”, from which the platforms hlep themselves to all of our private data they want and monetize it in various ways, or the third-party speech is advertisements, this IS their revenue model. They will never stop refusing third-party speech.

    Over moderating speech? Also not going to happen. In fact, turning poor Masnick's vapid logic on its head, there are many countries around the world that do not have a Section 230-type protection, and yet in those countries Facebook, Twitter and other digital platforms are still a gutter effluent of disinformation and garbage, even that is not “illegal” speech. The platforms take next-to-nothing down. Indeed, whether you have a Section 230 type law or not seems to make no difference about whether these portals are a flood of all kinds of speech.

    The only way that your and Masnick’s fear about platforms “pulling down all sorts of legitimate content” would ever become realized is if these platforms had any fear of being sued by a particular user. Do you have any idea how much resources it takes to sue Facebook, Google, and Twitter? The army of lawyers that they already use to handle such issues? It takes years and millions of dollars to sue them, with little chance of winning. Heck, even the FTC reluctantly takes on Facebook and Google, and even when it fined FB $5 billion – the largest fine in the history of the FTC – it was a small speedbump for Facebook. As are the legal costs. This is a company raking in $80 billion in revenue per year.

    So your fear that the platforms will be so worried about lawsuits and liability that they will start taking down content is simply not real world. Both the cost of litigation, as well as even legal settlement in the extremely rare circumstance that some lawyer will actually beat these platforms in the courtroom, would be just a rounding error for their revenue stream.

    Finally, under moderate speech? Good heavens, they already do that. They really couldn’t under moderate speech anymore than they already do. If you don’t believe me, see the New York Times expose about how child pornographers, rapists and other evil users have been using various platforms to live stream their horrendous criminal acts of violence in real time. And the companies have sometimes refused to take down some of this content, even when requested by the victims.

    So, to my way of thinking, as I indicated in the subject line of my first message that you censored -- or hid with a "warning" (like Twitter did to Trump, eh?) -- I think we need to put some rules around Big Tech. In fact, I am not sure I agree with Steven Hill that we should waste time trying to revoke Section 230 because it will be a big fight and I don’t think it’s going to accomplish a whole heck of a lot.

    Instead, we should move forward vigorously with the other proposals that he laid out in his op-ed – turning the business model into an investor-owned utility, and forbidding these platforms from taking our personal data without user consent.

    I would add other things to that list, such as restricting the hyper-targeted advertising model, and further restrictions on how these platforms design their products to target young people. I note that Italy just mandated that TikTok should block users whose age cannot be verified after the death of a 10-year-old girl who was encouraged via that platform to engage in dangerous behavior. How about some product liability, ever heard of that?

    Age verification is extremely important, yet the platforms are putting very little R&D into that because they don’t have any skin in this game. Tell me Mr. Stone/Masnick -- do you think the platforms should come up with a way to verify age? I await your answer....

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