Election Day is only a week away. Lawyers for both campaigns prepare for the possibility of messy litigation. A third wave of coronavirus cases rages throughout the country and within vice president Mike Pence’s inner circle. With all that going on, leading Senate Republicans have decided to spend much of Wednesday on the subject of … Section 230?
Evidently so. On Wednesday morning, Mark Zuckerberg, Sundar Pichai, and Jack Dorsey will appear remotely at a hearing titled “Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?” The law, part of the Communications Decency Act of 1996, gives interactive computer services broad legal immunity for content posted by users. The subpoenas for the CEOs were approved by both parties, but instigated by the Republican leadership of the Senate Commerce Committee. The hearing is part of a broader push by Republicans in general, and the Trump campaign in particular, to turn antagonizing big tech into a winning electoral message. You can watch it live right here:
How did Section 230 become such a key part of the GOP's strategy?
The answer is largely about Donald Trump, but the story doesn’t start with him. The person who really pioneered the use of Section 230 as a political cudgel is Trump’s onetime Republican primary opponent, Texas senator Ted Cruz. In 2018, during Zuckerberg’s congressional testimony following the Cambridge Analytica scandal, Cruz—who will also participate in Wednesday’s hearing—lectured the CEO about the law. “The predicate for Section 230 immunity under the CDA is that you’re a neutral public forum,” he said. If Facebook was systematically censoring conservatives, a baseless grievance often advanced by Republican politicians, it would jeopardize its eligibility for that immunity.
Cruz’s claim helped push Section 230 into the debate over tech regulation, even though it was rank nonsense. Section 230 has nothing to do with political neutrality. It was added to the 1996 bill to solve a very specific problem. In the early days of the internet, interactive websites—message boards, sites with comments, and so on—faced a legal conundrum. A federal judge had ruled that websites that took steps to moderate user posts would become liable for the content of those posts. The effect was a bit like saying a swimming pool owner is only liable for people drowning if he goes to the trouble of hiring lifeguards. It set up a terrible incentive structure in which websites would have to choose between allowing everything, including hateful and obscene content; trying to keep their platforms clean while assuming an enormous legal and financial risk; or banning all user-generated content.
Two members of Congress, Republican Chris Cox and Democrat Ron Wyden (now a senator), drafted Section 230 to fix those incentives. It has two important parts. The first says websites won’t be treated “as the publisher or speaker of any information provided by another information content provider.” In other words, they can’t be held liable for the material posted by users. If I slander you on Twitter, you can sue me, but you can’t sue Twitter. The second part says that websites are free to moderate content on their platforms without losing the immunity provided by the first part. That solves the lifeguard problem.
The arrangement held up without much controversy for two decades. But in the post-2016 backlash to Big Tech, Section 230 picked up critics on both sides of the aisle. Basically, some Democrats don’t like the first part of the law, while some Republicans don’t like the second part. Democrats want the platforms to police content more, Republicans want them to do it less. Democrats were particularly outraged last year when social media platforms refused to take down a viral video of House speaker Nancy Pelosi that had been doctored to make her seem to be slurring her words and a misleading Trump campaign ad attacking Joe Biden. In an interview with The New York Times editorial board in January 2020, Biden said Section 230 should be “revoked immediately.” (He has had little to say about the law since then.) Republicans, on the other hand, fear aggressive enforcement of platform content policies, sensing that a harder line against misinformation and hateful content will land more heavily on their supporters. They also see content moderation as a stalking horse for Silicon Valley’s liberal-leaning employees to unfairly discriminate against conservatives.
Because Section 230 is the only federal statute that specifically applies to interactive websites, it’s one of the only points of leverage Congress has over the platforms. That’s why some elected officials have taken to describing the law, inaccurately, as a “special privilege” that tech companies need to justify. So, for example, Missouri Republican Josh Hawley authored a bill that would force platforms to undergo an audit for partisan bias as a condition of keeping their legal immunity. The bipartisan EARN IT Act, meanwhile, would condition Section 230 protections on complying with an elaborate regime designed to limit child sexual abuse material.
The current state of Section 230 discourse didn’t really start until May 2020, however, when Twitter did the unthinkable: It fact-checked a Trump tweet. The president responded not only with outraged tweets about the First Amendment, but also by issuing an executive order directing the Federal Communications Commission to “clarify” the meaning of Section 230. Since then, there has been growing evidence that Trump sees this topic as a winning issue. On October 15, on the heels of Facebook and Twitter’s controversial choice to limit the spread of the murky New York Post Hunter Biden laptop story, FCC chairman Ajit Pai announced that he would move forward with agency rule-making pursuant to the May executive order. (Most outside experts agree that the FCC doesn’t really have the power to do this.) And Politico has reported that the White House urged Senate Republicans to help with its anti-tech push. According to anonymous Senate staffers, the upcoming Section 230 hearing is the result of that pressure. Trump himself, meanwhile, has made the law a talking point, repeatedly tweeting his desire to repeal it in all caps and even discussing it at recent campaign rallies. (In Ohio: “Big Tech, Section 230, right?”)
Clearly, Trump thinks that railing against the law, and devoting party resources to it in the final days of the campaign, makes for good politics. The question is why. “The idea that Trump is talking about Section 230 at campaign rallies—that’s insane,” says Eric Goldman, a law professor and blogger who has written extensively about the law. “He thinks that it’s well known and well understood enough that he can mention it and get a political payoff from that. And that is, obviously, a very different world than we’ve been living in.”
Certainly the notion that tech platforms are discriminating against Trump supporters plays naturally into familiar themes of populist outrage directed at liberal-elite cultural gatekeepers. It’s also possible that the Trump campaign has seen internal polling that suggests attacking Section 230 plays well with some crucial electoral bloc. But polls show that most Americans still have never heard of Section 230, let alone plan to base their vote on it.
The likeliest explanation, then, is that a president who recently told 60 Minutes that he wouldn’t be president without social media has begun confusing internet culture with real life. As Jane Coaston recently observed in Vox, “Donald Trump and his campaign are poisoned by toxic levels of being Extremely Online,” which Coaston defines as “to be deeply enmeshed in a world of internet culture, reshaped by internet culture, and, most importantly, to believe that the world of internet culture matters deeply offline.” And so the president’s rallies and debate performances are peppered with references to Russiagate conspiracy theories about unknown government officials, niche culture war topics, and the minutiae of the Hunter Biden disinformation campaign. And, yes, Section 230, a topic that appeals above all to Trump supporters who insist that they are being shadow-banned by Twitter.
As with most questions on how to regulate the tech sector, the Section 230 debate features a confusing tangle of cynical political theater and serious policy proposals. The big tech platforms have enormous power and very little accountability, and the government certainly needs to find a way to address that problem. With luck, Wednesday’s hearing will include some actual good-faith discussion of how to do that. Because if the goal is really just to influence the election, someone has been spending too much time in the filter bubble.