July 28, 2020 — Senators on Tuesday remained broadly divided on the extent and direction that changes to Section 230 should take.
The tenor of the discussion at a Senate Commerce Communications Subcommittee hearing suggested that the law was overdue for an overhaul, as senator after senator criticized what the internet had become.
But proposals for concrete change were fewer. Subcommittee Chairman John Thune, R-S.D., and Ranking Member Brian Schatz, D-Hawaii, for example, introduced the Platform Accountability and Consumer Transparency Act calling for procedural transparency.
Some on the right, including Sen. Ted Cruz, R-Texas, and full committee Chairman Roger Wicker, R-Miss., offered both broad and narrow critiques of Section 230. On the left, Sen. Richard Blumenthal said the PACT Act didn’t go far enough.
And still others, including Sens. Amy Klobuchar, D-Minn., and Sen. Jacky Rosen, D-N.V., weighed into concerns about the intersection of artificial intelligence and the law.
A voice of caution against changes to Section 230
Witnesses warned against making hasty changes to the statute, with former Rep. Christopher Cox, a co-author of Section 230, pointing out the foundational role it had played in the development of the digital world since its inclusion as part of the 1996 Telecom Act.
“It’s important to remember just how much human activity is encompassed within this vast category we so casually refer to as the internet,” Cox said. “To the extent that any new legislation imposes too much compliance burden or too much liability exposure that’s connected to a website’s hosting of user created content, the risk is that too many websites will be forced to respond by getting rid of user generated content altogether.”
Also sounding a voice of caution was Jeff Kosseff, assistant professor of cyber science at the U.S. Naval Academy, who said that it was important to gather more facts before adjusting the law.
“I don’t think we’re at the point of being able to reform, because we have so many competing viewpoints about what platforms should be doing on top of what we could require them to do because of the First Amendment, and other requirements,” he said.
Cox agreed, adding that another immediate challenge was to figure out what was actually doable. Reforming Section 230 seemed like a more daunting task than initially writing it had been, he said.
PACT Act would aim to increase platform accountability
The varied approaches that tech platforms take to objectionable content has “led to a limited ability for consumers to address and correct harms that occur online,” Thune said. “And as Americans conduct more and more of their activities online, the net outcome is an increasingly less protected and more vulnerable consumer.”
Thune and Schatz introduced the PACT Act in June. Thune said the bill would increase transparency without damaging the economic, innovative and entrepreneurial benefits stimulated by Section 230.
It would require platforms to post their content moderation procedures, submit quarterly reports to the Federal Trade Commission explaining content moderation decisions, define a prompt complaint and response system and implement a toll-free customer service line.
“Section 230 proponents say that Congress can’t possibly change this law without disrupting all of the great innovation that it has enabled, and I just disagree with that,” Schatz said. “The legislative process is about making sure that our laws are in the public interest.”
Blumenthal agreed with Thune and Schatz about the importance of increasing platform accountability.
“If there’s a message to the industry here, it is [that] the need for reform is now,” he said. “There’s a broad consensus that Section 230, as it presently exists, no longer affords sufficient protection to the public, to consumers, to victims and survivors of abuse.”
However, Blumenthal warned that the PACT Act did not go far enough, emphasizing the traumatic and lengthy process currently required in order for individuals to get abusive imagery such as child pornography removed from online platforms, involving obtaining a court order and locating all instances of the content.
“I’m very concerned about the burden that’s placed on the victims and survivors,” he said. “The PACT Act does not provide any incentive for Facebook to police its own platform.”
Hate speech and algorithmic discrimination
“Most powerful online intermediaries today are anything but publishers and distributors of user generated content,” said Fordham Law Professor Olivier Sylvain. “They harvest, sort and repurpose user posts and personal data to attract and hold consumer attention, and more importantly, to market these valuable data to advertisers…The result is too often lived harm.”
Sylvain pointed to Facebook’s practice of collecting data on users to categorize them across hundreds of dimensions using automated processes.
“Under civil rights law, Congress forbids discrimination in ads on the basis of race, ethnicity, age and gender in the markets for housing, education and consumer credit,” he said. “But that is exactly what Facebook allowed building managers and employers to do.”
Klobuchar took a similar angle, highlighting certain ads targeted at African American-focused webpages during the 2016 election that told viewers they should vote by texting a falsified number that rather than waiting at the polls.
“One of the issues commonly raised regarding content moderation across multiple platforms is the presence of bias in artificial intelligence systems that are used to analyze the content,” Rosen said. “Decisions made through AI systems, including for content moderation, run the risk of further marginalizing and censoring groups that already face disproportionate prejudice and discrimination, both online and offline.”
In addition, content moderation often misses dangerous hate speech, Rosen continued, pointing out the antisemitic posts found to have been made by the Tree of Life synagogue shooter on a right-wing media platform prior to his deadly attack.
“There’s so much work to be done in this area, because despite the best efforts of even the most well-motivated social media platforms, we see examples where the algorithms don’t work…I think the most troubling challenge for writing law in this area is, what about the great middle ground, where the platforms are not bad actors, they’re trying to do the right thing, but it just doesn’t amount to enough?” Cox said.
Complexities of content moderation practices
“Is there an approach by which we can incentivize active, clear and consistent content moderation without the negative consequences of less open platforms and fewer new entrants into the internet ecosystem?” Sen. Tammy Baldwin, D-Wis., asked.
“I think you really hit the nail on the head in terms of what the challenge is here,” Kosseff said.
Rather than an overly prescriptive approach, Kosseff recommended moving toward transparency, adding that some platforms have already begun to take steps in that direction.
Witnesses emphasized the difficulty of large-scale content moderation for social media platforms.
“The scale of these efforts is staggering,” said Elizabeth Banker, deputy general counsel of the Internet Association. “Facebook took action against 1.9 billion pieces of spam in a three-month period. In multiple cases, Section 230 has shielded providers from lawsuits from spammers who sued over removing their spam material.”
However, some senators were less willing to extend tech platforms the benefit of the doubt.
“The reality is that platforms have a strong incentive to exercise control over the content each of us sees, because if they can present us with content that will keep us engaged on the platform, we will stay on the platform longer,” Thune said.
Cruz repeated his oft-made claims of anti-conservative bias and censorship on social media platforms.
“Given the monopoly power they have over free speech, I view that as the single greatest threat to our democratic process we have today,” he said.
‘Otherwise objectionable’ is not overly vague, according to author of Section 230
The hearing also featured discussion of the Commerce Department’s petition on Monday asking the Federal Communications Commission to issue proposed rules narrowing Section 230’s protections, under the direction of an executive order from President Donald Trump.
Cox pointed out that the original iteration of the bill that evolved into Section 230 contained a provision explicitly denying the FCC authority to regulate the content of speech.
“I would like to see the FTC be more active in this area — I’d like to see the FTC holding platforms to their promises,” Cox added.
One of the potential ambiguities raised by the petition was the phrase “otherwise objectionable.”
“I question whether this term is too broad and improperly shields online platforms from liability when they remove content that they simply disagree with, dislike or find distasteful,” Wicker said. “The term may require further defining to reduce ambiguity, increase accountability and prevent misapplication of the law.”
Cox explained that ‘otherwise objectionable’ should be understood with reference to the list of specific offenses preceding it, adding that it was “not an open-ended granted immunity for editing content for any unrelated reason a website can think of.”
Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms
The decision resulted in an unusual court split. Justice Kagan sided with Justice Alito but refused to sign his dissent.
WASHINGTON, May 31, 2022 – On a narrow 5-4 vote, the Supreme Court of the United States on Tuesday blocked a Texas law that Republicans had argued would address the “censorship” of conservative voices on social media platforms.
Texas H.B. 20 was written by Texas Republicans to combat perceived bias against conservative viewpoints voiced on Facebook, Twitter, and other social media platforms with at least 50 million active monthly users.
The bill was drafted at least in part as a reaction to President Donald Trump’s ban from social media. Immediately following the January 6 riots at the United States Capitol, Trump was simultaneously banned on several platforms and online retailers, including Amazon, Facebook, Twitter, Reddit, and myriad other websites.
See also Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021
Close decision on First Amendment principles
A brief six-page dissent on the matter was released on Tuesday. Conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented, arguing that the law should have been allowed to stand. Justice Elena Kagan also agreed that the law should be allowed to stand, though she did not join Alito’s penned dissent and did not elaborate further.
The decision was on an emergency action to vacate a one-sentence decision of the Fifth Circuit Court of Appeals. The appeals court had reversed a prior stay by a federal district court. In other words, the, the law passed by the Texas legislature and signed by Gov. Greg Abbott is precluded from going into effect.
Tech lobbying group NetChoice – in addition to many entities in Silicon Valley – argued that the law would prevent social media platforms from moderating and addressing hateful and potentially inflammatory content.
In a statement, Computer & Communications Industry Association President Matt Schruers said, “We are encouraged that this attack on First Amendment rights has been halted until a court can fully evaluate the repercussions of Texas’s ill-conceived statute.”
“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law. We appreciate the Supreme Court ensuring First Amendment protections, including the right not to be compelled to speak, will be upheld during the legal challenge to Texas’s social media law.”
In a statement, Public Knowledge Legal Director John Bergmayer said, “It is good that the Supreme Court blocked HB 20, the Texas online speech regulation law. But it should have been unanimous. It is alarming that so many policymakers, and even Supreme Court justices, are willing to throw out basic principles of free speech to try to control the power of Big Tech for their own purposes, instead of trying to limit that power through antitrust and other competition policies. Reining in the power of tech giants does not require abandoning the First Amendment.”
In his dissent, Alito pointed out that the plaintiffs argued “HB 20 interferes with their exercise of ‘editorial discretion,’ and they maintain that this interference violates their right ‘not to disseminate speech generated by others.’”
“Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others,” he said, referencing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.
“But we have rejected such claims in other circumstances,” he continued, pointing to PruneYard Shopping Center v. Robins.
Will Section 230 be revamped on a full hearing by the Supreme Court?
“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law,” Alito said.
Alito argued that there is a distinction between compelling a platform to host a message and refraining from discriminating against a user’s speech “on the basis of viewpoint.” He said that H.B. 20 adopted the latter approach.
Alito went on, arguing that the bill only applied to “platforms that hold themselves out as ‘open to the public,’” and “neutral forums for the speech of others,” and thus, the targeting platforms are not spreading messages they endorse.
Alito added that because the bill only targets platforms with more than 50 million users, it only targets entities with “some measure of common carrier-like market power and that this power gives them an ‘opportunity to shut out [disfavored] speakers.’”
Justices John Roberts, Stephen Breyer, Sonya Sotomayor, Brett Kavanaugh, and Amy Coney Barrett all voted affirmatively – siding with NetChoice LLC’s emergency application – to block H.B. 20 from being enforced.
Parler Policy Exec Hopes ‘Sustainable’ Free Speech Change on Twitter if Musk Buys Platform
Parler’s Amy Peikoff said she wishes Twitter can follow in her social media company’s footsteps.
WASHINGTON, May 16, 2022 – A representative from a growing conservative social media platform said last week that she hopes Twitter, under new leadership, will emerge as a “sustainable” platform for free speech.
Amy Peikoff, chief policy officer of social media platform Parler, said as much during a Broadband Breakfast Live Online event Wednesday, in which she wondered about the implications of platforms banning accounts for views deemed controversial.
The social media world has been captivated by the lingering possibility that SpaceX and Tesla CEO Elon Musk could buy Twitter, which the billionaire has criticized for making decisions he said infringe on free speech.
Before Musk’s decision to go in on the company, Parler saw a surge in member sign-ups after former President Donald Trump was banned from Twitter for comments he made that the platform saw as encouraging the Capitol riots on January 6, 2021, a move Peikoff criticized. (Trump also criticized the move.)
Peikoff said she believes Twitter should be a free speech platform just like Parler and hopes for “sustainable” change with Musk’s promise.
“At Parler, we expect you to think for yourself and curate your own feed,” Peikoff told Broadband Breakfast Editor and Publisher Drew Clark. “The difference between Twitter and Parler is that on Parler the content is controlled by individuals; Twitter takes it upon itself to moderate by itself.”
She recommended “tools in the hands of the individual users to reward productive discourse and exercise freedom of association.”
Peikoff criticized Twitter for permanently banning Donald Trump following the insurrection at the U.S. Capitol on January 6, and recounted the struggle Parler had in obtaining access to hosting services on AWS, Amazon’s web services platform.
While she defended the role of Section 230 of the Telecom Act for Parler and others, Peikoff criticized what she described as Twitter’s collusion with the government. Section 230 provides immunity from civil suits for comments posted by others on a social media network.
For example, Peikoff cited a July 2021 statement by former White House Press Secretary Jen Psaki raising concerns with “misinformation” on social media. When Twitter takes action to stifle anti-vaccination speech at the behest of the White House, that crosses the line into a form of censorship by social media giants that is, in effect, a form of “state action.”
Conservatives censored by Twitter or other social media networks that are undertaking such “state action” are wrongfully being deprived of their First Amendment rights, she said.
“I would not like to see more of this entanglement of government and platforms going forward,” she said Peikoff and instead to “leave human beings free to information and speech.”
The acquisition of social media powerhouse Twitter by Elon Musk, the world’s richest man, raises a host of issues about social media, free speech, and the power of persuasion in our digital age. Twitter already serves as the world’s de facto public square. But it hasn’t been without controversy, including the platform’s decision to ban former President Donald Trump in the wake of his tweets during the January 6 attack on the U.S. Capitol. Under new management, will Twitter become more hospitable to Trump and his allies? Does Twitter have a free speech problem? How will Mr. Musk’s acquisition change the debate about social media and Section 230 of the Telecommunications Act?
Guests for this Broadband Breakfast for Lunch session:
- Amy Peikoff, Chief Policy Officer, Parler
- Drew Clark (host), Editor and Publisher, Broadband Breakfast
Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.
Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.
As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.
Leave Section 230 Alone, Panelists Urge Government
The debate on what government should — or shouldn’t — do with respect to liability protections for platforms continues.
WASHINGTON, May 10, 2022 – A panelist at a Heritage Foundation event on Thursday said that the government should not make changes to Section 230, which protects online platforms from being liable for the content their users post.
However, the other panelist, Newsweek Opinion Editor Josh Hammer, said technology companies have been colluding with the government to stifle speech. Hammer said that Section 230 should be interpreted and applied more vigorously against tech platforms.
Countering this view was Niam Yaraghi, senior fellow at the Brookings Institution’s Center for Technology Innovation.
“While I do agree with the notion that what these platforms are doing is not right, I am much more optimistic” than Hammer, Yaraghi said. “I do not really like the government to come in and do anything about it, because I believe that a capitalist market, an open market, would solve the issue in the long run.”
Addressing a question from the moderator about whether antitrust legislation or stricter interpretation of Section 230 should be the tool to require more free speech on big tech platforms, Hammer said that “Section 230 is the better way to go here.”
Yaraghi, by contrast, said that it was incumbent on big technology platforms to address content moderation, not the government.
In March, Vint Cerf, a vice president and chief internet evangelist at Google, and the president of tech lobbyist TechFreedom warned against government moderation of content on the internet as Washington focuses on addressing the power of big tech platforms.
While some say Section 230 only protects “neutral platforms”, others claim it allows powerful companies to ignore user harm. Legislation from the likes of Amy Klobuchar, D-Minn., would exempt 230 protections for platforms that fail to address Covid mis- and disinformation.
Correction: A previous version of this story said Sen. Ron Wyden, D-Ore., agreed that Section 230 only protected “neutral platforms,” or that it allowed tech companies to ignore user harm. Wyden, one of the authors of the provision in the 1996 Telecom Act, instead believes that the law is a “sword and shield” to protect against small companies, organizations and movements against legal liability for what users post on their websites.
Additional correction: A previous version of this story misattributed a statement by Niam Yaraghi to Josh Hammer. The story has been corrected, and additional context added.
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