Reforming Section 230 to allow only censorship of illegal content will create a more open internet

Later today the US internet giants will be grilled by the Senate over how they censor their platforms, with Section 230 protections at stake.

The most immediate catalyst for this increased state scrutiny is the recent suppression of a piece of reporting from the NY Post newspaper, alleging corruption on the part of one of the candidates in the imminent US Presidential election. The question of political bias in the moderation of social media platforms, however, has been raised repeatedly throughout the Trump presidency.

Much of the focus of the Senate Commerce Committee hearings will be on Section 230, which makes a legal distinction between internet publishers and platforms, and protects the latter from liability for the content they host. At the heart of the matter is the question of how much editorial control an internet platform can exercise, while still retaining those protections.

The CEOs of Twitter, Facebook and Google have been leaking their prepared remarks ahead of the hearing. Some reports imply they’re largely opposed to any reform of Section 230, but that’s misleading. The biggest concern of the social media companies and some internet activists is that their Sections 230 protections may be removed entirely, but that is a straw man.

Of course it would be impossible for social media to function in their current form if they had to vet every piece of content before publishing it. The whole point of social media is that it’s a platform for users to interact with each other directly. Introducing a mediator to that interaction would not only slow the whole process to a crawl, it would probably dissuade many people from the platforms at all.

So no reasonable person is suggesting a total repeal of Section 230. Instead there seems to be a clear need for clarification of the dividing line between platform and publisher. Of the three companies in question, Facebook seems to have the best appreciation of the factors that need to be balanced in this reform process.

“The debate about Section 230 shows that people of all political persuasions are unhappy with the status quo,” says Facebook CEO Mark Zuckerberg in his written testimony. “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.

“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.

“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.”

Some commentators have interpreted Zuck’s attempt to balance the various competing issues as an attack on free speech, but they couldn’t be more wrong. As the NY Post drama illustrated, it’s the current environment that increasingly threatens freedom of speech, so the libertarian case for reform is clear. Even those same commentators concede that moderation at scale is impossible to do well.

So the only meaningful discussions will focus on what form that shape should take. Done badly, it could make the situation even worse, and people are right to question the competence of politicians in this area. The Internet Society is citing YouGov research that shows 69% of the American public does not believe politicians have the knowledge or understanding needed to effectively regulate the Internet.

“The American public’s concern about politicians’ ability to regulate the Internet is legitimate,” said Katie Watson Jordan, Senior Policy Advisor of the Internet Society. “While it is the government’s job to defend the rights of their constituents and keep us safe, unfortunately a lack of technical understanding has given rise to the promotion of legislation with serious implications for the Internet we all rely on.

“At worst, revoking Section 230 could fundamentally harm the infrastructure of the global Internet. Section 230 provides vital protections to the Internet that we take for granted, and any proposals to regulate the Internet must recognize the distinction between platforms and applications, and other Internet infrastructure intermediaries.”

The revoking straw man is proving impossible to resist for many, but that is not the matter at hand. Moving past that, the Internet Society urges lawmakers to use its impact assessment toolkit before changing the law, which seems sensible. It also wisely stops short of opposing any reform at all.

A hilarious feature of the social media censorship debate is the transformation of statist types into laissez faire free marketeers when it suits their agenda. “They’re private companies so they can do what they want,” they counter when conservatives complain about selective censorship. What they choose to overlook is that everyone, even internet giants, are constrained by the law.

That’s why Section 230 is so pivotal. It’s a piece of law that grants legal protections that can just as easily be removed. Attaching clearer conditions to those protections is the obvious way to constrain  and guide social media censorship. Sure, those companies are still free to do what they want, but only if they’re willing to forgo their Section 230 protection.

Zuckerberg’s testimony seems to be inviting that type of reform and, if EDiMA’s activities are anything to go by, he’s far from alone in that desire. Clearer legal parameters, with accompanying protections when they’re respected, would make the job of moderating internet platforms a lot simpler and less dangerous.

The clear solution has always been to make Section 230 protections conditional on censoring only content that is demonstrably illegal and nothing more. If a given platform finds it impossible to reconcile that with the demands of its commercial partners then it must choose between them or the loss of those legal protections. The free speech vacuum created if they choose the latter option will quickly be filled by other platforms prepared to respect the new rules, ensuring the internet becomes more open than ever.