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President Trump is considering issuing an executive order that would put the Federal Communications Commission (FCC) in charge of determining how Facebook, Twitter, Pinterest, and other large tech companies curate what appears on their websites.
The change would radically alter the protections afforded to companies under Section 230 of the Communications Decency Act, a part of the Telecommunications Act of 1996 (see below for an explanation of Section 230).
In the Senate, Sen. Ted Cruz, R-Texas, has called for the Section 230 to be repealed altogether. “Right now, big tech enjoys an immunity from liability on the assumption they would be neutral and fair,” said Cruz. “If they’re not going to be neutral and fair, if they’re going to be biased, we should repeal the immunity from liability so they should be liable like the rest of us.”
Similarly, Sen. Josh Hawley, R-Mo., introduced a bill that would eliminate Section 230 protections for big tech platforms unless they could prove their political neutrality to the Federal Trade Commission every two years. ““With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” said Senator Hawley. “Unfortunately, and unsurprisingly, big tech has failed to hold up its end of the bargain.”
In the House, Rep. Paul Gosnar has introduced the “Stop the Censorship Act” to amend section 230. “Despite their claims, Big Tech does not always foreclose on violent or obscene behavior; in fact, they often monetize it—but they do police political speech, said Gosnar. “Therefore, Big Tech’s immunity should strictly be for good faith efforts to remove actual unlawful content.”
Democratic presidential candidate Beto O’Rourke recently also proposed changing it as a way to counter hate speech and gun violence in America. “We must connect the dots between internet communities providing a platform for online radicalization and white supremacy,” his website reads. Another presidential candidate, Kamala Harris, has said we must “hold social media platforms accountable for the hate infiltrating their platforms . . . If you don't police your platforms we are going to hold you accountable as a community.”
Rep. Ed Case, D-Hawai, also supports changing 230 so that it doesn’t shield platforms such a Airbnb from “facilitating illegal rental bookings.”
What is Section 230?
Section 230 (“Protection for private blocking and screening of offensive material”) has been called the law that gave us the modern internet. The law allowed a more open and free market of ideas and for the creation of user-generated content sites like Craigslist and Facebook by giving companies additional protection from litigation.
In the early 1990s, online services such as CompuServe and Prodigy were sued for the content they allowed from third parties. A state court ruling in 1995 suggested these services would receive more protection under the First Amendment if they did not moderate content at all. The result would have been that companies would have been incentivized to take a “hands-off” approach and not remove offensive material.
Many social conservatives, worried about the spread of pornography, lobbied Congress to pass the the Communications Decency Act, which penalized the online transmission of indecent content and protected companies from being sued for removing such offensive content.
Why some parts of the Act were later deemed by the courts to be a violation of the First Amendment, Section 230 was allowed to stand. Part C of the section covers “Protection for “Good Samaritan” blocking and screening of offensive material”:
(1) Treatment of publisher or speaker — 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.
(2) Civil liability — No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
What this means is that websites and companies, including Internet Service Providers (ISPs), that host or republish content are protected against a range of laws that might otherwise be used to hold them legally responsible for the speech or actions of those who use their product (such as commenters on a website). For example, websites like YouTube currently allow users to upload content directly to the site because the company will not be held legally liable for offensive material (though companies like YouTube typically remove offensive content after it has been posted).
CDA 230 also offers its legal shield to bloggers who act as intermediaries by hosting comments on their blogs, says the Electronic Freedom Foundation (EFF). As EFF clarifies, “Under the law, bloggers are not liable for comments left by readers, the work of guest bloggers, tips sent via email, or information received through RSS feeds. This legal protection can still hold even if a blogger is aware of the objectionable content or makes editorial judgments.”
Why are changes to Section 230 being proposed?
Depending on the politician, the changes to the law is considered necessary either to censor online content or to prevent online content from being censored.
Republicans, such as Trump, Cruz, Hawley, and Gosnar, believe social media companies like Facebook have an anti-conservative bias and are censoring content by conservatives.
In contrast, Democrats, such as Harris and O’Rourke, want to repeal 230 to encourage companies to censor offensive speech, including content that is considered “hateful” about gender identity and sexual orientation.
How would the changes affect Section 230?
As CNN notes, tech companies acting "in good faith" currently qualify for broad legal immunity when they take down objectionable content. The executive order (as currently drafted) asks the FCC to restrict the government's view of the good-faith provision. According to CNN, under the draft proposal, the FCC will be asked to find that social media sites do not qualify for the good-faith immunity if they remove or suppress content without notifying the user who posted the material, or if the decision is proven to be evidence of anticompetitive, unfair or deceptive practices.
Isn’t changing 230 necessary to prevent crimes such as sex trafficking?
Section 230 does not protect web platforms from criminal prosecution for posting illegal content (such as child pornography) or participating directly in illegal activities (such as facilitating sales of illegal drugs). Similarly, such companies are subject to state and local law and can be sued in civil court for violations of the law.
A change to Section 230 made in 2018 by Congress also clearly states that it has “no effect on sex trafficking law.” ERLC was in support of this policy change.
"The internet has become a haven for predators using it to traffic and sexually exploit innocent women and children," said ERLC President Russell Moore in 2017. "It is well past time to provide a legislative solution that allows victims of online sex trafficking to seek justice and restitution from the websites that facilitate their abuse. This legislation would close loopholes and ensure those complicit in the online sex trade would find no refuge in America's justice system."
Why it matters to Christians?
Increasingly, society is waking up to the reality of the influence that technology companies have on us. As the internet and these tools have grown in size and influence, it is important for us to think about the issues of free speech and the role of corporations and government in society. Many companies are working to provide outlets for free speech, such as the oversight board for content moderation at Facebook. How we as a society decide to deal with these issues will have a lasting impact on us and how these tools are used in society.