Well, fuck.
Some of the biggest corporations in the United States are brawling over the future of the law that allows free speech and innovation to thrive online. Under the guise of getting rid of lies and protecting children, they’re working with the Trump administration and top Republicans to undermine Americans’ rights and give the government unprecedented control over online speech.
Special interests trying to influence federal laws and regulations are nothing new in Washington. Big banks and drug companies have been wildly successful at working the system to discourage competition and stay on top. Occasionally, however, Congress actually passes a law that protects the less powerful elements of our society, the insurgents and the disrupters. That’s what it did in 1996 when it passed a law I co-authored called Section 230 of the Communications Decency Act.
Section 230 was written to provide legal protection to online platforms so they could take down objectionable material without being dragged into court. It lets companies remove posts from white supremacists or trolls without being sued for bias or for limiting individuals’ First Amendment rights. If a website wants to cater to the right wing, it can. If it wants to ban Trump supporters, it can do that, too.
Section 230 also says the person who creates content is the one responsible for it. So if President Trump libels an innocent person on Twitter, he can be sued. Without 230, social media couldn’t exist. Sites such as Yelp would be sued to death. Start-ups such as Portland’s AllGo, which collects user reviews about how restaurants serve plus-size customers, would never get off the ground. Movements such as Black Lives Matter or #MeToo, whose advocates post controversial accusations against powerful figures on social media, would have remained whispers, not megaphones for oppressed communities.
The fight is defined by an intensive lobbying effort by big legacy corporations such as Disney and IBM that are looking for an advantage against big tech companies such as Google and Facebook. Each side wants to rewrite the rules to cement its own dominance.
Some have argued that repealing Section 230 would punish Facebook and Google for their failures. That’s simply not true. The biggest tech companies have enough lawyers and lobbyists to survive virtually any regulation Congress can concoct. It’s the start-ups seeking to displace Big Tech that would be hammered by the constant threat of lawsuits.
Whenever laws are passed to put the government in control of speech, the people who get hurt are the least powerful in society.
That’s what happened in 2018, when, in the wake of news stories about disturbing ads on a site called Backpage, Congress scaled back 230 with a law known as SESTA-FOSTA — a combination of the Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act. At the time, I proposed a different approach, including hiring more prosecutors. And I warned that this bill would do little to stop sex trafficking or help true victims but would simply push sex work underground.
By all accounts that is exactly what has happened. Backpage was shut down before SESTA even went into effect. And sex workers have been driven to the dark Web or the streets, where sex trafficking has increased dramatically. The most vulnerable group bore the brunt of this law.
This is how speech regulation inevitably works in practice. If Congress somehow were to amend the First Amendment and ban hate speech from the Internet, I see no reason to believe President Trump and Attorney General William P. Barr would use that authority to protect LGBTQ activists or female journalists or African American civil rights leaders.
Instead, I’m certain this administration would use power to regulate speech to punish its enemies and protect its allies. It would threaten Facebook or YouTube for taking down white supremacist content. It would label Black Lives Matter activists as purveyors of hate.
The Trump administration is working with Republican Senate leaders to advance legislation giving the attorney general power to set online speech guidelines along with the opportunity to access everything Americans do with their digital devices.
There are plenty of things Congress can do to hold Big Tech accountable. I’d start with passing a strong privacy law, such as my Mind Your Own Business Act, which includes tough enforcement provisions for tech executives, including the possibility of jail. And concerns about anti-competitive practices, including the Facebook-Instagram merger, deserve serious investigation from the Justice Department and Federal Trade Commission.
I stand ready to work with anyone to hold the biggest corporations accountable, whether for dodging taxes, extorting Medicare or ripping off consumers. I draw the line at putting any politician in charge of what people can say or how they can say it, whether it’s on the Internet or anywhere else.
Time will tell.
