SECTION 230 CONTEXT & REFORM
In order to get the commercial Internet up and running in the mid-nineteen-nineties, the nascent industry and Congress struck a deal, memorialized in part as Section 230 of the Communications Decency Act of 1996, among other legislation. Congress classified an Internet business like Alphabet/Google, Meta/Facebook, and Twitter, which had yet to emerge at the time the legislation was enacted, as an “interactive computer service” and shielded the business from liability for content posted to its platform. “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” the statute read. In so many words, enabling federal legislation permitted Internet publication without corporate liability.
In return, Internet platforms promised to keep things clean. No indecency, no obscenity. As long as an interactive computer service suppressed “material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected,” the limited liability shield insulated and inoculated it.
When it came to the 2020 presidential election, however, Alphabet/Google in search and You Tube banning, Meta/Facebook in social media and Twitter in text messaging went way beyond policing smutty talk.
Section 230 hardly gave Alphabet/Google, Meta/Facebook, or Twitter a free hand to officiously supervise public discourse. When it comes to constitutionally protected speech, Alphabet/Google’s self-appointed and unilaterally imposed algorithm-democracy chafed no less than Meta/Facebook and Twitter arbitrarily and capriciously branding one or another post as erroneous and stifling its network effects. Their presumption, lording over patrons as publishers while claiming liability immunity as interactive computer services with federal lawmakers and regulators and state attorneys general, exposed big tech reigning over news and information whatever one’s partisan convictions. Allegations of content moderation inescapably ensued as each corporate giant’s walled garden defined public discourse.
Abandoning Section 230 compliance then made things worse. In June, 2020, a virtual walkout by Meta/Facebook managers and employees opposed to President Trump’s rhetoric discombobulated management adherence to Section 230 obligations. As Frances Fox Piven had remarked in a Mother Jones interview earlier in the year, “the great untapped reservoir of power—leverage—that ordinary people have is always their ability to refuse to cooperate.”
All authentic and empowering for Bay Area and Manhattan Meta/Facebook and Twitter employees despising President Trump,[1] but unambiguously prior restraints suppressing those engaging social media to promote his re-election, say workers in Clyde, Ohio employed at Whirlpool thanks to Trump trade policies or Guilford, Maine at Puritan Medical Products making swabs and diagnostic equipment to fight Covid-19 with Operation Warp Speed funds.
Nor did Twitter suspending President Trump tweets for 12 hours and censoring tweets contending election fraud, urging peace, and calling on demonstrators to return to their homes January 6 the day that Congress debated and certified Electoral College electors following protestors entering the Capitol and disrupting deliberations resolve evidentiary disputes over ballots and electors. Subsequent permanent banning, which Twitter vindicated with content policies decoding the President’s language, and Meta/Facebook banning for the duration of the president’s term next threw the bright lights of publicity on each firm as editor and publisher well beyond Section 230 curation obligations. By so doing, Twitter and Meta/Facebook advertised their market power and injected more contention, dispute and controversy over Internet governance and market administration.
This censorship and suppression inflict market dominance. Such arbitrary and capricious Alphabet/Google, Apple, Amazon, Meta/Facebook, and Twitter monopoly suppression and abuses of market power on grounds of public order were transparently anticompetitive no matter how cloaked in prudential rhetoric.
Racketeering charges were next visited upon Alphabet/Google and Apple for suppressing competition for taking down Parler’s mobile application from their application stores as individuals were boosting Parler, a non-suppressing substitute for Twitter, to the top of the text messaging market on January 10 and 11, 2021. Amazon threw gasoline on the fire by cancelling its hosting services. American Civil Liberties Union legislative counsel soon decried Twitter’s and Meta/Facebook’s “unchecked power” in instant messaging and social media.
What was hoped to work well in 1996 going forward from a wireline, dial-up Internet transmitting email and text attachments turns out to be woefully anachronistic for commercial wireline and wireless broadband networks transacting video, text and voice dominated by a handful of incumbents.
The pervasive reach of dominant incumbent policies across social media, instant messaging and payment platforms necessarily raised contemporaneous concerns of heavy-handed, grossly-applied, self-selected, beneficently-intended prior restraints as a new normal in public discourse.
At the same time, all Alphabet/Google, Apple, Amazon, Meta/Facebook and Twitter, among other enterprises, had done by January 7, 2021 was to become robber baron wealthy and dominantly powerful in their respective lines of business making communication more efficient for patrons and five people had died the day before occupying the Capitol. Corporate leadership necessarily felt obligations well beyond quelling restive workers and managers and calming patrons.
In so doing, Meta/Facebook, Twitter, Alphabet/Google, and Apple tapped long standing traditions of American lawlessness. So many loathed President Trump and rejected his claims of election fraud that disregarding Section 230 enabling legislation compliance was the easier risk. “Any law that goes counter to the strong feeling of a large part of the population is bound to be disobeyed in America,” James Thurlow Adams observed in “Our Lawless Heritage,” The Atlantic Monthly, December, 1928. “Lawlessness has been and is one of the most distinctive American traits… Americans themselves are, and always have been, less law-abiding than the more civilized European nations.”
Adams’s insight was as true. Interactive computer service monopolists censored speech in violation of Section 230 enabling legislation and protracted their market dominance with the approval and approbation of many citizens, who were disgusted with President Trump and disturbed by the invasion of the Capitol.
The big losers, of course, were all citizens, who suffered losses of free speech.
Reform
Available information technologies enable individuals, enterprises, and institutions to monetize and compensate one another securely and reciprocally for data and meta data that all create with investments, transactions and Internet and broadband communications at no marginal cost.
Citizens, who suffered losses of free speech due to the draconian silencing of interactive computer service providers, would emerge as winners.
Vibrant data and meta data markets, powered by these available information technologies, merit evaluation as substitutes and complements to legislative and regulatory proposals promoting structural separation, presuming predation, banning vertical integration, or ruggedizing consumer welfare law. Achieving Progressive market administration does not have to be so litigious, time consuming and burdened with regulatory and administrative costs.
More people could achieve more benefits at lower regulatory costs with speedier efficiencies.
Secure, distributed ledgers would complement and could obsolesce first generation, commercial Internet abuses of market power and censorship. Vibrant, egalitarian spot markets in data and meta data would flourish and democratize wealth for individuals, enterprises, and institutions.
Interactive computer service, Internet content provision and network operator incumbents could achieve industry peace, retain fixed assets, and scale enterprise growth.
Individuals, enterprises, and institutions would assume legal responsibility for compensated content they originate and sell either among themselves or to dominant incumbents.
Information provider accountability for compensated content resolves interactive computer service liability.
This approach achieves burden switching for dominant interactive computer services and broadband operators.
For Meta/Facebook, it would be a slam-dunk. Compensating patrons with digital currency would create depositors for Novi wallets.
Alphabet/Google would discourage substituting alternative search engines by compensating individuals, enterprises, and institutions for searches.
Twitter would sustain patronage with people and organizations understandably reluctant to abandon followers as stranded assets despite its heavy handed policies.
What could be as easy and elegant?
Contract, libel, and defamation law would resolve dominant incumbent abuses of market power and censorship riling interactive computer services and the contemporaneous Internet.
Thanks to these available information technologies, the Progressive gold standard of bigness, efficiency, investment, and competition finds 21st century expression and implementation through Internet and broadband egalitarian wealth creation. Alphabet/Google, Meta/Facebook and Twitter could now securely compensate individuals, enterprises and institutions seeking information on search engines, contributing content to social networks, and contributing to micro-blogging platforms. Dominant incumbents would enhance market capitalizations as central players in new markets monetizing data and meta data transactions.
With available information technologies in synch with the times, vibrant data and meta data markets ground competent politics, practical business, and prudential market administration. Monetize payments with digital currencies like bitcoins and stablecoins or with dollars, pounds sterling, Euros, Yen, Renminbi, bitcoins, and non-fungible tokens, NFTs.
@kanyewest (@kanyewest)
Endnote
[1] “The Trump era began with outrage at ‘populists’ who didn’t listen to the highly educated and were bringing authoritarianism to America,” David Frank observes in Le Monde Diplomatique, August 6, 2021. “It has ended in a resounding professional-class triumph in which powerful corporations constantly tell the world what noble antiracists they are... in which the news media is not only post-objective but actively on a crusade to suppress the ideological Other... and in which tiny political missteps not only get people fired but sometimes bring them under a crushing hailstorm of public humiliation…. The highly educated cohort… by which I mean its millions of affluent, highly educated professionals — a slice of the population that has done extremely well over the last few decades… exerts hegemonic control over the nation’s media, financial and ‘knowledge’ industries… [and] perceived what was happening in national politics as a deadly challenge to its own status,” Frank remarks.