No matter the topic or area, experts and lawyers have the amazing ability to find and exploit the grey area in everything. This exploitation is not limited to speech or content on the internet. Sadly, it all seems to start with a well-intended law or bill passed on the hill. I sincerely want to believe that most laws are established for the greater good of humanity. However, it seems that lawmakers may not fully grasp how laws could affect other aspects of the future or look at newly proposed laws with a “bigger” picture outlook. The Communications Decency Act, Section 230, is a perfect example.
While it is likely no lawmaker saw the internet explode how it did, this law provided a grey area that technology companies in the future could misuse. That is precisely what has happened. Section 230 was enacted in 1996 signed into law by President Clinton. At the time, the internet was in its infancy stage, and there were only three main players. This law provided these “interactive computer service” providers protection against liability of its users’ speech. Meaning that any provider would not be treated as a publisher ad be subject to the same liabilities as journalists.
There are pros and cons to Section 230. The positive of Section 230 is its ability to make every unabashed opinion, comment, content, and review available to be posted on all platforms. The downside, of course, is that all speech is fair game. The downside of Section 230 has led to the distribution of misinformation, disinformation, and malformation. With the spread of “objectional content” and the coined term “fake news,” citizens across the world are vocalizing their displeasure. Rightfully so. People are now asking the government to step in and do “something.”
In a 2021 Gallup poll, 57% of Americans want to see more government regulations imposed on big tech companies. This pressure for government intervention stems from people’s increased negative views of website platforms like Facebook, Google, Apple, and Amazon. There appears to be bipartisan support for regulating “interactive” internet platform providers. In June 2020, the Antitrust House Judiciary Subcommittee opened an investigation to take a closer look at the operations of these big tech firms and their impact on fair competition. The subcommittee has made recommendations to the FTC, the Justice Department, and Congress to amend the antitrust laws.
Until Congress makes impactful changes, Americans are at the mercy of big tech deciding what content is and is not seen. Platforms like Facebook and Twitter have been accused of moderating user content to the point of banning some users. Interestingly in 2021, the U.S. government then asks them to help prevent the spread of misinformation relating to elections, vaccines, and COVID-19. 59% of people polled agree that social media platforms should ban certain content. Putting this all together, Americans want the government to place more regulations on big tech, and Congress is worried they are becoming too large. However, the government wants them to “moderate” certain topics, and many people agree that should happen. Is that not asking to have it both ways?
ASU Professor Dan Gillmor concluded in 2014 that we, the people, have made it possible for these tech giants to wield so much power over speech. This conclusion is even more true today. He was right in his premonition that giving over this power could erode conventional ideologies of free speech. Part of this power was given with Section 230, which allows “interactive” web-based providers to remove, flag, or suppress posts made by users they deem objectionable. The rest of the power is being given over through government request and people’s support of content moderation. It may be prudent for lawmakers to start asking the “what if” questions when devising or updating laws to expose potential grey areas that could create future challenges.
