Login | December 18, 2018

How Congress might regulate social media

Cases and Controversies

Published: November 10, 2017

Our country’s internet giants currently sit at a crossroads. The three major social media companies, Facebook, Google (mainly through YouTube) and Twitter, have an outsized effect on American culture, economy and, as seen last year, politics.

Lawmakers on both sides are concerned about Silicon Valley. The companies and many of the executives who control them hold political philosophies that mix social issues progressivism, including a general friendliness toward identity politics, with a libertarian-leaning economic conservatism.

Meanwhile, they are shockingly powerful. Facebook and Google scoop up approximately 90 cents of every new ad dollar generated on the web. A tweak to Facebook’s algorithm could crater the web traffic of selected media companies.

Facebook and Google, along with Apple and Amazon, have grown so big that they will inevitably face scrutiny. That is all the truer given that they move through the world in ways that can make anyone uncomfortable.

Meanwhile, Twitter is barely hanging on, but as the current president’s favorite platform, must be included in any discussion.

Observers have been speculating in the tech press that the government may move against big tech. Often that speculation runs toward antitrust suits, but the law has grown more conglomerate-friendly since the AT&T break-up decades ago. But Congress holds another tool for bringing the social media companies to heel, and last week saw some interesting developments on that front.

Social media exists because Congress inadvertently created the space for business models that depend on user-generated content when it passed the Communications Decency Act of 1996. Section 230 of the act states that no proprietor of an interactive internet service may be held to be the publisher of information posted by users for the purposes of most forms of liability.

Now that these companies have hundreds of millions of users, they cannot vet content posted by them. Most can and do use computer algorithms to monitor traffic. But if Facebook could create a bot or algorithm that was 99.9% effective (it hasn’t yet come close) that would still leave millions of potentially actionable posts. Since they now represent some of the deepest pockets ever created, they would be swamped with lawsuits.

Some concerns about the big social networks directly implicate Section 230: online harassment, false information Others like the long-term sustainability of industry sectors like media and retail don’t. But in any case, Congress holds the power to upend the social business model by amending Section 230.

The major tech companies, along with internet freedom activists like the Electronic Frontier Foundation and the ACLU, have historically taken an NRA-like absolutist position on Section 230, saying it is essential to the business. Another way of framing that argument is that these companies cannot exist unless they are able to avoid paying the full cost of the business of publishing unedited content.

Recently, we have seen a crack in the stone wall around Section 230. Ohio Senator Rob Portman introduced the Stop Enabling Sex Trafficking Act [SESTA] which makes clear that internet companies can be held liable for knowingly facilitating or supporting sex trafficking.

Summit County residents may have become aware of the bill when Summit County Council recently voted to endorse it. (In the interests of full disclosure, I wrote about the council vote for another news organization.)

Portman introduced the bill after courts found that Section 230 would immunize websites such as Backpage.com, even when the site was found to have intentionally facilitated trafficking on its site.

Initially, the tech firms and activists joined forces to rigorously oppose Sen. Portman’s bill. But after weeks of opposition, on Nov. 3, The Internet Association, which includes the biggest companies including Facebook, Google and Amazon, announced an agreement to support the SESTA when lawmakers agreed to a couple of compromises. One made clear that immunity would remain for companies acting in good faith and the other limited state attorneys general to pursuing charges under federal, not state law.

Now it looks like the law will likely pass. Aside from the dent it may make in human trafficking, it is more interesting as a rare break with the Silicon Valley orthodoxy against internet regulation, and may show a way forward for members of Congress interested in reigning in the power of the social media companies.

The compromise of SESTA illustrates this dynamic. The tech companies perceived Congress’s limited patience combined with public concern about the most powerful internet players, and compromised on this one small thing. But Congress may also learn that it can get the attention of the tech world by contemplating changes to the section. Threatening to carve divots in Section 230 immunity, may prove an increasingly popular way of inducing changes in how these companies do business.