No Repeal Without a Replacement
Section 230 is in the news again, thanks to the outgoing president’s threat to veto the must-pass National Defense Authorization Act. The last and notable act of this single term presidency may well be a veto override by a majority of his party’s Congressmembers.
It’s more than a little odd that any politician with a penchant for hostility and exaggeration would seek to repeal the very law that enables Twitter to make his messages available without fear of defamation and libel suits. But most of the complaints about Section 230 have shown a lack of understanding of the law’s import.
The best tutorial you’re likely to see is this Twitter thread by Professor Jeff Kosseff, the man who literally wrote the book on this law.
I'm inexplicably getting a lot of DMs, emails, phone calls, telegrams, carrier pigeons about 230 this morning. So I thought that today's 230 thread could address a high-level question: what does Section 230 do? There's quite a bit of confusion on this.
— Jeff Kosseff (@jkosseff) December 2, 2020
Diverse Online Communities Reflect the Real World
Lest we forget, Section 230 was originally passed to protect Compuserve from a lawsuit filed by a shady operator upset over a comment posted by one of its users. Hence, the first impact of a repeal of 230 would be a lack of willingness on the part of covered firms – every Internet business from ISPs to websites to social platforms – to publish controversial content.
The second goal of 230 was to encourage content moderation; it was part of the Communications Decency Act after all, an ill-conceived attempt at taking pornography off the Internet. Content moderation is the most significant friction point today, with the left broadly believing current practices are too permissive and the right holding the view that they’re too restrictive.
It’s unlikely that everyone will ever come to a happy medium that goes beyond clarity and consistency in the application of a wide range of policies. Social media platforms are attempts at creating virtual communities just as diverse as real ones, and no two platforms apply the same standards.
It’s also peculiar for president with one foot out the door to propose a sweeping change in Internet law that would be administered by the President-Elect’s appointees at the FCC, FTC, and Justice Department. As Senator Sasse points out:
“I am more skeptical than a lot of my colleagues on both sides of the aisle about whether or not there is a regulatory fix that will make it better instead of worse,” Sasse said. “I think it is very odd that so many in my party are zealous to do this right now when you have an incoming administration of the other party that would be writing the new rules and regulations.”
Repealing Section 230 without a suitable replacement feels lot like the ill-fated attempt at the Repeal & Replace of the ACA that foundered due to the lack of a suitable replacement. If Congress repeals 230, there’s no consensus replacement in the wings.
Oftentimes, a bad law is better than no law at all. But a good law trumps both.
The 230 replacement needs to apply to the entire Internet, including ISPs. These firms have 230 protection today, but only because they’ve been classified as information services by the FCC.
Common carriers also enjoy immunity for the content they carry, but only by surrendering to price controls and much more strict privacy restrictions than those shouldered by the real privacy villains, the ad networks. We should have uniform laws for liability, data protection, and business practices everywhere.
Applying uniform legal standards to ISPs, gateway services (e.g., Cloudflare), and social platforms means doing away with discriminatory net neutrality laws that only ban non-rivalrous differentiation but happily allow advertisers to compete financially for exclusive placements.
The key concept here is anti-competitive conduct rather than feel-good bans on anything that can be made to sound scary.
As I said in the last post, meaningful transparency goes a long way toward calming people down about moderation decisions as well as toward nudging platforms toward consistency. I think it will be especially useful on platforms that crowdsource their content decisions, such as social networks and outrage blogs.
Transparency is the only good thing to come out of the raucous net neutrality debate (more on that next time.) When forced to be specific about the things they’re trying to maximize vs. those they want to eliminate, transparency rules also provide discipline to regulators.
The mere fact that the Wheeler FCC was unable to make a coherent description of its “general conduct rule” exposed its emptiness. Is it OK for a provider to provide non-rivalrous differentiation (the kind that doesn’t harm other services) for a fee?
There’s no sound economic argument against it.
Data Privacy and Security
Aside from a realistic, properly funded plan for rural broadband, there’s no tech issue more in want of Congressional action than data privacy and security. This issue even raised its ugly head in the ballot counting hubbub, reflecting the public’s poor understanding of the issue.
The status quo protects dominant firms in the Internet advertising space – Google and Facebook – and leaves the public very, very worried. How much information do these firms have about us and how well is it secured?
These questions are answerable, but it’s a rare thing for lawmakers to ask meaningful questions in the many hearings that have put the big offenders under the spotlight. Platforms need lots of information to make interest-based advertising work, but the ad space is still dominated by ads for the last thing you searched for, whether you bought it or not.
Hence, many people think interest-based advertising is never going to work so we’re just giving up personal information for no good reason. That’s a position worth exploring.
Solving one Problem by Creating Two Others
Section 230 was particularly important in creating the Internet we have. That statement cuts both ways.
Most of us seem to agree that the Internet we have is kind of OK, but it needs improvement. Yes, ecommerce and photo sharing are nice, but arbitrary moderation, hateful content, and fake news are not.
Let’s identify a pair of problems for Congress to address with specific guidelines and see where that takes us. I nominate arbitrary moderation and data privacy and security.