Facebook, Google, and Twitter have never been tech companies …

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Today, the United States Senate Committee on Commerce, Science, and Transportation will convene a hearing to discuss whether firms like Facebook, Google, and Twitter can maintain immunity from civil penalties under Section 230 of the Communications Act of 1934 as amended by the Communications Decency Act of 1998. Specifically, under 47 USC 230(c), we read the following:

(c)Protection for “Good Samaritan” blocking and screening of offensive material

(1)Treatment of publisher or speaker

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.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A)any action voluntarily taken in good faith to restrict access to or availability of 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; or

(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

How the chief executive officers from Google, Facebook, and Twitter answer today’s questions as to whether and how their companies edit content posted on their platforms should provide fodder for any future litigation or regulation under the Communications Decency Act of 1998. There is still the likelihood, based on chatter in the press, that Section 230 itself could be repealed. The push back against repeal may come from smaller platforms such as Parler, an online platform that touts itself as a place where people can “Speak freely and express yourself openly, without fear of being “deplatformed” for your views. Engage with real people, not bots. Parler is people and privacy-focused, and gives you the tools you need to curate your Parler experience.”

If people can speak without inhibition (or likely facts) on a platform like Parler, smaller entrants into the information platform markets will want protection from posts that are seen as indecent and protection when they take actions to combat indecent speech.

Politically, the issue of whether online companies lose their liability protections under the Communications Decency Act of 1998 will become less of an issue after 20 January 2021 under a Joe Biden administration. The political Right have been raising the most hell regarding Section 230 given their concerns that conservative voices have been squelched by Twitter and Facebook. The political Left have been more concerned about online privacy issues, that these companies have abused the data they collect from their platform’s subscribers.

Compared to Donald Trump who has been leading the charge against what he sees as liberal bias by these platforms, Joe Biden himself has been relatively quiet on the issue, although he reportedly, along with the President, endorses repealing Section 230 in its entirety. The chairman of the senate commerce committee, Roger Wicker, Republican of Mississippi, is against a total repeal.

On first blush, based on their behavior, these companies lost the protection afforded them under the Communications Decency Act of 1998. They have been able to hide behind the moniker of “tech company” for so long that they have been given a pass when they use algorithms rather than human editors to modify or divert content. Acting like a newspaper opens them up to libel laws and would require a digital attorney saying yay or nay on millions of posts made every day. This would near destroy their current business model and cause them to transform, I believe, to a hybrid paid, unpaid system for subscribers or compensate content providers.

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