Washington’s war on internet free speech

The United States is apparently angling to outpace its European counterparts when it comes to silly, censorious, and sometimes dangerous internet policies. The latest batch of bad proposals in Congress and the White House would, if enacted, kill social media, search engines, and so much other online life as we know it.

While conservative politicians here grumble about ‘hate speech’ and ‘data protection’ laws abroad, the alternatives they keep proposing here are just as speech-squelching and business-burdening. And while Republican party leaders have historically hated US plans like the ‘Fairness Doctrine’ and ‘net neutrality’, they keep pushing their own versions of these for social media.

A proposal purportedly floating around the White House ‘would let unelected bureaucrats police online speech’, as my Reason colleague Billy Binion put it. A version seen by CNN earlier this month showed tentative plans to put the Federal Communications Commission and the Federal Trade Commission in charge of defining political ‘neutrality’ online and punishing social media moderation that fails to live up to that standard.

The alleged Trump administration plan echoes one put forth earlier this summer by Missouri Republican Sen. Josh Hawley. Both plans would hit companies for failures of neutrality with a loss of protection under Section 230 of federal communications law. Two more 2019 bills from Congressional Republicans would amend Section 230, as well (one by conditioning it on companies displaying all content in chronological order.)

Section 230, in essence, says that digital content companies and users of their services aren’t legally indistinguishable. If I tweet a statement that turns out to be illegal in some way – say, a genuine threat – then Twitter is not automatically liable for that statement. If you write a defamatory post on your WordPress blog, neither WordPress nor the search engines that index your post will be legally liable. If a web hosting company provides server space to some web entity sued in civil court, the hosting company is likely safe. And so on.

There are exceptions – Section 230 does not protect against federal criminal prosecutions, for instance. It also emphatically does not require ideological or political neutrality when it comes to filters, algorithms, content moderation, or user account decisions. Not only is such a requirement unworkable – who defines neutrality? How can it be assessed without analyzing everything allowed and not allowed on a particular website? Who has the time and resources for that? – but it’s also completely contrary to the intent of Section 230. The point of the law was to make room for internet companies to set their own speech standards, and to empower internet users with both a diversity of options and tools to shrink those options if they like. And it specifically says that filtering out illegal or otherwise ‘objectionable’ content does not increase legal risk.

The loss of Section 230 protection would mean a company could face huge legal and financial penalties for all sorts of things that their users posts – especially if they receive notice about some user or content and don’t act. Without Section 230 protection therefore, companies would either give up moderation attempts entirely (can’t know what people don’t report!) or, much more likely, crack down on user speech much more indiscriminately.

After the 2018 passage of FOSTA, which relates to prostitution and Section 230, Craigslist closed its personals ad section and all sorts of platforms began cracking down on any user posts related to sex. The liability became too great.

Hawley‘s plan and the one supposedly circulating the White House would do the same thing for political speech.

Democrats have had their own quarrels with Section 230. Many fought for FOSTA, and almost all voted for it. Presidential candidate Beto O’Rourke last week introduced a proposal to ‘remove legal immunity from lawsuits for large social media platforms’ for failing to be aggressive enough at policing ‘hateful activities, defined as those that incite or engage in violence, intimidation, harassment, threats, or defamation targeting an individual or group based on their actual or perceived race, color, religion, national origin, ethnicity, immigration status, gender, gender identity, sexual orientation or disability.’ House Speaker Nancy Pelosi suggested Section 230 protection could be taken away from companies if they don’t adequately police ‘deepfake’ videos.

But while the anti-230 plans would have the most far-reaching and disastrous consequences, there are plenty of other daffy proposals percolating in Congress. Hawley would also ban YouTube’s autoplay feature and make it illegal for companies to recommend perfectly benign digital videos of anyone under age 18. (RIP teen TikTok stars and YouTubers.)

Democratic Sen. Dianne Feinstein wants to set up elaborate systems of disclosure and reporting for ‘bots’, by which she more or less means anyone using automation software to set up online posts. Sen. Mark Warner wants to make digital companies that share or broker user data file a quarterly report with each user estimating the value of said user’s data to the company. Both the Warner and Feinstein bills would require extensive reporting to federal agencies too.

Meanwhile, everyone from Sen. Elizabeth Warren to Tucker Carlson are calling for things like ‘breaking up Facebook’ and antitrust violations for ‘Big Tech’. Indeed, the Department of Justice and the FTC are in the middle of investigating tech companies on these grounds. But the disconnect between what politicians and activists pretend this will do (help ordinary users of these services somehow, spur competition in the attention economy) and what they actually will do is wide. In reality, a finding of violation may net the feds some money, but likely change little about the operating practices on the platforms they run while dangerously expanding the purview of antitrust law.

Democrats and Republicans often give wildly different reasons – stopping white nationalism, ending anti-Trump bias, etc. – for why we need them to micromanage online speech, design, data, and features much more. Sometimes they come together on rationale, like ‘data privacy’ or stopping terrorism or protecting children from sexual predators. Always, they appeal to either fairness or safety.

The fact that they promise to assuage all of these vast things with such simple and similar solutions should give us pause.

When you look closely at the language of so many of these proposals, they boil down to more federal agency oversight of every aspect of online communications, more tech companies turning over company and user data to authorities, and expanding government power to punish companies and individuals who don’t play by their rules. They would ‘enhance’ user privacy by making whatever private companies have on us available to government eyes, too, and ‘end censorship’ by expanding the government’s power to censor.

Our current patchwork system of private online entities with varying values and practices may be messy, chaotic, and not fair in every instance, but it keeps control over digital ideas and interactions decentralized and resistant to any one particular agenda. American politicians, like their counterparts all over the world right now, seem determined to change that.