Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior? A senate Committee Wants to Know

The Senate Commerce Committee convene a hearing to examine whether Section 230 of the Communications Decency Act has outlived its usefulness in today’s digital age. Lawmakers hammered the chief executives of Twitter, Facebook, Google -- and one another. Republicans claimed the companies were suppressing conservative views. Of the 81 questions asked by Republicans, 69 were about censorship and the political ideologies of the tech employees responsible for moderating content. Democrats accused their colleagues of holding a “sham” hearing for political gain. Democrats asked 48 questions, mostly about regulating the spread of misinformation related to the election and the coronavirus pandemic.

Committee Chairman Roger Wicker (R-MS) said that for almost 25 years, the preservation of internet freedom has been the hallmark of a thriving digital economy in the United States. This success has largely been attributed to a light-touch regulatory framework and to Section 230 of the Communications Decency Act – often referred to as the “26 words that created the internet.” There is little dispute that Section 230 played a critical role in the early development and growth of online platforms. But now the internet is no longer an emerging technology -- and Twitter, Google, and, Facebook now are huge companies. It is ironic, Chairman Wicker said, that when the subject is net neutrality technology companies, including Facebook, Google, and Twitter, have warned about the grave threat of blocking or throttling the flow of information on the internet. Meanwhile, these same companies are actively blocking and throttling the distribution of content on their own platforms and are using protections under 30 to do it.  Is it any surprise that voices on the right are complaining about hypocrisy. Chairman Wicker recently introduced legislation to clarify the intent of Section 230’s liability protections and increase the accountability of companies who engage in content moderation. 

Committee Ranking Member Maria Cantwell (D-WA) said, "I believe that discussion and discourse today should be broader than just 230. There are issues of privacy that our committee has addressed and issues of how to make sure there is a free and competitive news market."

Twitter CEO Jack Dorsey testified that as we consider developing new legislative frameworks, or committing to self-regulation models for content moderation, we should remember that Section 230 has enabled new companies—small ones seeded with an idea—to build and compete with established companies globally. Eroding the foundation of Section 230 could collapse how we communicate on the Internet, leaving only a small number of giant and well-funded technology companies. We should also be mindful that undermining Section 230 will result in far more removal of online speech and impose severe limitations on our collective ability to address harmful content and protect people online. I do not think anyone in this room or the American people want less free speech or more abuse and harassment online. Instead, what I hear from people is that they want to be able to trust the services they are using. He said the company seeks to earn trust in four ways: (1) transparency, (2) fair processes, (3) empowering algorithmic choice, and (4) protecting the privacy of the people who use our service.

Alphabet CEO Sundar Pichai said Google approaches "our work without political bias, full stop. To do otherwise would be contrary to both our business interests and our mission, which compels us to make information accessible to every type of person, no matter where they live or what they believe." He said that Section 230 protects the freedom to create and share content while supporting the ability of platforms and services of all sizes to responsibly address harmful content.

Facebook CEO Mark Zuckerberg told the committee that Section 230 of the Communications Decency Act is a foundational law that allows us to provide our products and services to users. At a high level, Section 230 does two things:

• It encourages free expression. Without Section 230, platforms could potentially be held liable for everything people say. Platforms would likely censor more content to avoid legal risk and would be less likely to invest in technologies that enable people to express themselves in new ways.
• It allows platforms to moderate content. Without Section 230, platforms could face liability for doing even basic moderation, such as removing hate speech and harassment that impacts the safety and security of their communities.

Republicans attacked Twitter and Facebook for what they said was censorship of posts by conservative politicians and for downplaying a recent New York Post article about Hunter Biden, the son of the Democratic presidential nominee, Joseph R. Biden Jr. “Mr. Dorsey, who the hell elected you and put you in charge of what the media are allowed to report and what the American people are allowed to hear?” Senator Ted Cruz (R-TX) asked.

Conservative claims of censorship online are based largely on anecdotal examples of right-wing commentators or lawmakers whose content was moderated by social media platforms. But many conservative personalities have built enormous audiences on the platforms, and lawmakers did not offer evidence that systemic bias was built into the companies’ products. [More on bias claims here.]

“Mr. Dorsey, your platform allows foreign dictators to post propaganda, typically without restriction,” said Chairman Wicker. “Yet you typically restrict the president of the United States.”

Dorsey replied that Twitter had taken actions against leaders around the world, including President Donald Trump. “As we think about enforcement, we consider severity of potential offline harm, and we act as quickly as we can,” he said.

Senator Shelley Moore Capito (R-WV) also asked the tech leaders about a clause in Section 230 that protects companies from liability for restricting access to content that they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.” She asked whether they would be in favor of redefining the phrase “otherwise objectionable.” All the chief executives said they supported keeping the phrase.

Democrats accused Republicans of holding the hearing to pressure the companies into going easy on them before Election Day.

“It’s a sham,” Senator Brian Schatz (DHawaii) said. Senator Amy Klobuchar (D-MN) said Republicans were politicizing “what should actually not be a partisan topic.” And Senator Tammy Duckworth (D-IL) said they were “placing the selfish interests of Donald Trump ahead of the health of our democracy.”

On the question of how much Section 230 should change, the tech CEOs were divided:

• Dorsey said “removing Section 230 will remove speech from the internet” while acknowledging that the “good faith” component of the law means Twitter and its peers still need to earn their users’ trust.
• “Our ability to provide access to a wide range of information is only possible because of existing legal frameworks, like Section 230,” Pichai said.
• Zuckerberg split from his peers, calling for the government to rethink the law even while noting that Section 230 protects Facebook from pressure to both overzealously remove and entirely ignore harmful content. “Section 230 helped create the internet as we know it … but the internet has also evolved, and I think that Congress should update the law to make sure that it’s working as intended,” Zuckerberg said, echoing previous calls he’s made for more government regulation of the tech sector. “One important place to start would be making content moderation systems more transparent.”