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Why Congress is never going to fix a legal shield that Big Tech loves

Daniel Howley
·Technology Editor
·7 min read

Wednesday, November 18, 2020

This article was first featured in Yahoo Finance Tech, a weekly newsletter highlighting our original content on the industry. Get it sent directly to your inbox every Wednesday by 4 p.m. ET. Subscribe

The law that created the modern internet needs to be fixed. Congress won’t do it.

For the second time in less than a month, Facebook (FB) CEO Mark Zuckerberg and Twitter (TWTR) CEO Jack Dorsey testified before Congress on Tuesday about Section 230 — the law that helped build the modern internet and that has become a flashpoint for both Democrats and Republicans.

Section 230 of the Communications Decency Act gives online platforms a liability shield when they take a “good faith” approach to moderating user-generated content on their services. It’s why we have sites like Facebook, Twitter, YouTube, and Yelp. And both Democrats and Republicans hate it. But for very different reasons.

Mark Zuckerberg, Chief Executive Officer of Facebook, testifies remotely as Senator John Kennedy (R-LA) looks on during the Senate Judiciary Committee hearing on 'Breaking the News: Censorship, Suppression, and the 2020 Election' on Capitol Hill on November 17, 2020 in Washington, DC. (Photo by Bill Clark / POOL / AFP) (Photo by BILL CLARK/POOL/AFP via Getty Images)
Mark Zuckerberg, Chief Executive Officer of Facebook, testifies remotely as Senator John Kennedy (R-LA) looks on during the Senate Judiciary Committee hearing. (Photo by BILL CLARK/POOL/AFP via Getty Images)

“Democrats want the tech companies to do more to remove disinformation and hate speech. The Republicans, by contrast, want to preclude them from removing false and offensive content,” Stanford University Law School professor Mark Lemley told Yahoo Finance.

Despite their shared dislike of Section 230, the members of the Senate Judiciary Committee, which held Tuesday’s hearing, proved just one thing: Nothing will change, because they refuse to agree about why it should.

Section 230 is why we have the internet as we know it

Section 230 came into existence in 1996, when the internet was still new. Politicians seeing the explosive growth of online platforms that hosted user-generated content feared that children would stumble upon pornography, while traversing the still nascent web. So websites were given the ability to take down user content they considered to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

That catchall term related to “otherwise objectionable” content has politicians in Washington in a tizzy, because it gives platforms wide latitude to moderate users’ posts.

During last month’s Senate Commerce Committee hearing on Section 230, Dorsey testified that taking away the law would effectively destroy the modern internet.

“Section 230 is the most important law protecting internet speech,” he said. “Removing Section 230 will remove speech from the internet.”

Twitter CEO Jack Dorsey testifies remotely via videoconference in this screengrab made from video during a Senate Judiciary Committee hearing titled, "Breaking the News: Censorship, Suppression, and the 2020 Election,? on Facebook and Twitter's content moderation practices, on Capitol Hill in Washington, U.S., November 17, 2020. U.S. Senate Judiciary Committee via REUTERS
Twitter CEO Jack Dorsey testifies remotely via videoconference in this screengrab made from video during a Senate Judiciary Committee hearing (Image: U.S. Senate Judiciary Committee via REUTERS)

That’s not a controversial stance among experts, either.

Lemley says stripping liability protection from 230 would be incredibly disruptive to the tech industry and could destroy entire firms.

“It would be a drastic solution that would cause some internet companies to shut down altogether and cause others to be overbroad in screening out content,” he said.

It wouldn’t just hurt the big firms like Facebook and Twitter, explained John Yun, associate professor of law at George Mason University’s Antonin Scalia School of Law. It would be the smaller up and coming firms that take the biggest hit by losing Section 230 protections.

“I think if they got rid of Section 230 it would actually help the incumbents and hurt the smaller firms, because regulatory intervention almost always, always helps the larger firms, and they'll be able to navigate Section 230 and without it being there,” Yun told Yahoo Finance Live.

Democrats and Republicans want the same thing for different reasons

Tuesday’s hearing made clear that both Republicans and Democrats are unsatisfied with the current state of Section 230. Sen. Richard Blumenthal (D-CT) put it succinctly by telling the committee, “Change must come to social media.”

He went on to say that the social networks allow President Donald Trump to regularly post content that “shocks our conscience” and that the platforms are used to “spread viscous falsehoods” including conspiracy theories about the 2020 election.

“Mr. Zuckerberg and Mr. Dorsey, you have built terrifying tools of persuasion and manipulation with power far exceeding the robber barons of the last gilded age,” Blumenthal added, saying that he supports a partial repeal in large part of Section 230 immunity.

According to the senator, Facebook and Twitter’s immunity shield is too broad and “the victims of their harms deserve to have their day in court.”

Senator Ted Cruz (R-TX), meanwhile, told Dorsey at Tuesday’s hearing that Twitter is acting as a publisher when it adds fact-checking labels to tweets by Trump, or limits the spread of posts like those by the New York Post, which shared an article alleging that President-elect Joe Biden met with an executive at a Ukrainian energy firm whose board his son, Hunter, served on.

Sen. Ted Cruz, R-T, questions Mark Zuckerberg, Chief Executive Officer of Facebook, and Jack Dorsey, Chief Executive Officer of Twitter, during a Senate Judiciary Committee hearing titled, "Breaking the News: Censorship, Suppression, and the 2020 Election, on Facebook and Twitter's content moderation practises, on Capitol Hill in Washington,DC on November 17, 2020. (Photo by Bill CLARK / POOL / AFP) (Photo by BILL CLARK/POOL/AFP via Getty Images)
Sen. Ted Cruz, R-T, questions Mark Zuckerberg, Chief Executive Officer of Facebook, and Jack Dorsey, Chief Executive Officer of Twitter, during a Senate Judiciary Committee hearing. (Photo by BILL CLARK/POOL/AFP via Getty Images)

Sen. John Kennedy (R-LA), meanwhile, questioned why, outside of harassment and calls to violence, Facebook and Twitter can’t simply let content remain on their platforms and let users figure out the truth for themselves.

For his part, Dorsey told the committee he wants consumers to be able to choose the kinds of algorithms that serve up their content.

“We believe the greatest impact is going to be found in how we deal with algorithms and how we use the algorithm, because they are responsible for showing us what we see or what we don’t see and there needs to be more choice in their use,” Dorsey said.

Zuckerberg, on the other hand, wants full-fledged transparency reports made available to the public, similar to what the company already offers.

“One of the areas that I’ve advocated for is regulation around transparency that goes beyond just about what the policies are and what the process is but also goes to results,” he said.

Where do we go from here?

With both sides of the aisle split on why they want Section 230 changed, it seems unlikely we’ll get firm answers as to the future of the law anytime soon, especially if Democrats lose the Senate runoff elections in Georgia, resulting in a split government.

“Both parties (and President-Elect Biden) have called for the repeal of Section 230 immunity. But the parties seem to want opposite things from that reform,” Lemley, who serves as the director of the Stanford Program in Law, Science and Technology, explained.

“While it is possible that they will just repeal immunity and do nothing else, I think that is unlikely,” he added.

Cornell Law School Professor George Hay, meanwhile, told Yahoo Finance Live that while both Dorsey and Zuckerberg seem fine with changes to Section 230 that would limit their firms’ liability shields, the bigger issue will be how they respond to moderating content under such conditions.

“I’m not sure there is a big disagreement that changes should be made to 230 and can be made, the fight is going to come afterwards when they are in a position where they are supposed to exercise control over content, and there is going to be a dispute over what control to exercise,” Hay said.

From the looks of it, we’re back at the exact same position we were in before Tuesday’s hearing, or even last month’s. Republicans and Democrats want change, the CEOs are open to it, but no one can seem to agree what that will look like.

And that leaves us, once again, stuck with the status quo.

By Daniel Howley, tech editor. Follow him at @DanielHowley

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