This week has seen a flurry of activity surrounding Section 230 of the Communications Decency Act, which limits liability for technology companies. A Wall Street Journal op-ed, penned by the CEO of MeWe, a social media website growing in popularity among conservatives because of its hands-off policy for content moderation, argued that keeping Section 230 was critical for small businesses competing with technology companies like Facebook. A coalition of over 70 progressive groups signed onto a letter addressed to the Biden Administration urging them not to gut Section 230.
However, President Biden’s pick to head the Commerce Department, Gina Raimondo, signaled a willingness to change Section 230, saying technology companies “need to be held accountable” for the content on their sites. Ranking Member Cathy McMorris Rodgers (R-WA) on the Energy and Commerce committee, which has authority regulating technology companies, circulated a memo outlining plans to either strip the liability protections of Section 230 or create a timeline for when those protections will end.
While “Big Tech” has received backlash from both the political right and left, there still is a lack of consensus on what exactly these companies are doing wrong. Democrats have hammered the technology companies for not being quick enough to take down misinformation, while Republicans have lamented on what they view as political censorship from Silicon Valley companies after President Trump was deplatformed. Congress and the Biden administration would be wise to proceed with caution when addressing Section 230 and consider the possible ramifications of major changes to this law. If Section 230 was to be repealed or gutted, what could the ramifications be?
As the MeWe CEO points out, gutting Section 230 will make it harder for smaller companies to compete with larger and more established companies, like Facebook. If the liability for users’ posts is shifted to the companies, not only would this lead to an increase in content moderation, but it would also place a significant financial strain on smaller businesses. We would likely not see another garage or dorm room startup achieve the same level of success that American technology companies have. Instead, as lawsuits begin to roll in, larger and wealthier companies would be able to cope while smaller companies would fall by the wayside.
The difference from a user perspective could also change drastically. If technology companies were to be held liable for what users published on their sites, they could very well shift their model to restrict which users are able to actively post on their site. This would be similar to newspapers where the author is vetted and the content is approved by the company before being published. Overall, this could lead to a significant restriction on the rapid exchange of information and ideas we’ve seen online and would likely only exacerbate the claims of political censorship.
The issues associated with regulating speech are complex and there is unlikely to be an easy fix. While certain solutions like “banning illegal content” may seem straightforward, some of the legal cases related to defamation and libel suits can carry on for years and require a deep legal background. Again, this would add more strain to growing businesses. Companies like Facebook and Twitter are experimenting with new forms of content moderation. Facebook has referred the case of whether to allow Donald Trump back onto the platform to an independent review board. Meanwhile, Twitter has launched “Birdwatch” as a way to crowdsource content moderation. It remains to be seen which, if either, of these approaches will ease the minds of politicians and consumers.
The protections in Section 230 are not a giveaway to “Big Tech” - they benefit smaller technology companies and consumers. Congress and the administration should listen to the concerns of taxpayers and private sector entities on the possible ramifications major alterations to this law could have on the growing digital economy and free speech. Punitive or rash actions might be applauded by some on the far left or right in the short term, but the long term consequences of such actions would eventually constrict the growing digital space as Americans become increasingly reliant on the internet for school, employment, and even simple interactions with others. The White House and Congress must be targeted, thoughtful, and without malice while working to address this complicated and politically charged topic.