The occasion was a hearing of the House Energy and Committee Commerce
and its subcommittees on communications and technology and consumer protection and commerce. The intent was to “explore whether online companies are appropriately using the tools they have — including protections Congress granted in Section 230 of the Communications Decency Act — to foster a healthier Internet.”
Section 230, as my colleague Adi Robertson noted earlier this year, is “one of the internet’s most important and most misunderstood laws
.” These days, members of Congress typically describe it as a priceless free pass given to tech companies to exempt them from most legal requirements to moderate the content on their platforms. In fact, it was created to enable
platforms to moderate content — and became law because Congress wanted tech companies to moderate more content than they previously were.
Jeff Kosseff, who wrote a book on 230, explained it to Robertson:
Then we get to these early internet services like CompuServe and Prodigy in the early ‘90s. CompuServe is like the Wild West. It basically says, “We’re not going to moderate anything.” Prodigy says, “We’re going to have moderators, and we’re going to prohibit bad stuff from being online.” They’re both, not surprisingly, sued for defamation based on third-party content.
CompuServe’s lawsuit is dismissed because what the judge says is, yeah, CompuServe is the electronic equivalent of a newsstand or bookstore. The court rules that Prodigy doesn’t get the same immunity because Prodigy actually did moderate content, so Prodigy is more like a newspaper’s letter to the editor page. So you get this really weird rule where these online platforms can reduce their liability by not moderating content.
That really is what triggered the proposal of Section 230. For Congress, the motivator for Section 230 was that it did not want platforms to be these neutral conduits, whatever that means. It wanted the platforms to moderate content.
And so the platforms continued to moderate content, eventually growing to an unimaginable size, and employing tens of thousands of moderators around the world. But owing in large part to their size, many bad things continue to take place on their servers: fraud, harassment, revenge porn, election interference, and so on.
It was in that context that Congress met today to complain about all of the things, and threaten to return us to a world where 230 did not exist, and — uh, platforms had no legal incentive to moderate content at all?
I regret to say that almost everything that followed was very dumb. This exchange, captured by a writer from Boston University, illustrates how. On one side you have Reddit CEO Steve Huffman, who describes the company’s hybrid approach to moderation: the company sets a “floor” of rules for users, but individual communities can raise the “ceiling” by adding additional rules that suit their needs.
And then on the other side you have an elected official rattling off empty action-movie one-liners:
Reddit’s Huffmann, in his submitted remarks, described how the company works: “The way Reddit handles content moderation today is unique in the industry. We use a governance model akin to our own democracy—where everyone follows a set of rules, has the ability to vote and self-organize, and ultimately shares some responsibility for how the platform works.”
At least one committee member found that sort of approach far too weak.
“You better get serious about self-regulating,” Congressman Bill Johnson (R-Ohio) said to the panelists, “or you’re gonna force Congress to do something that you might not want to have done.”
You hear that, Huffman? If you don’t “get serious,” whatever that might mean, Congress might “do something.” Something “that you might not want to have done,” to boot!
It seems to me that if you were concerned about the balance of power between technology companies and their users in 2019, you might start with their enormous size and well documented anticompetitive behavior
. Elsewhere in the government, to the credit of agencies like the Federal Trade Commission and the Justice Department, civil servants are doing just that. But to look at the unintended consequences of tech platforms and diagnose the cause as a law that incentivizes them to remove the bad stuff — well, maybe it’s Congress who better get serious.
All of this would be comical had lawmakers previously “done something” about Section 230, with awful results. Last year, Congress passed FOSTA-SESTA
, a bill nominally intended to fight sex trafficking. It threatens any website owner with up to 10 years in prison for hosting even one instance of prostitution-related content. As a result, sites like Craigslist removed their entire online personals sections. Sex workers who had previously been working as their own bosses were driven back onto the streets, often forced to work for pimps
. Prostitution-related crime in San Francisco alone — including violence against workers — more than tripled
This is the kind of legislation you get from a Congress that is intent on doing something but too ignorant of technology, of history, and of the law to know what. I suppose that a hearing in which members ask technology companies to explain themselves is a step forward. I hope that Congress was listening, however little evidence there is that they were.