Section 230: America is about trade. Information should be subject to markets …


Alton Drew

I see a lot of waste in America. For an example, just take a look at e-mails exchanged within and between corporate departments. It is hard to believe that American MBA holders are racking up e-mail threads with one or two liners that effectively amount to suggesting changes in a word or adding a period to a sentence. About 25% percent of this e-mail exchange usually entails Worker One telling Worker Two that Worker One is going on vacation and will be out of touch. Ironically, Worker One makes it a point somewhere during his two-week vacation to a place he will likely never visit again to send a picture from the beach where he is sitting with a laptop across his thighs.

Americans stay busy for the sake of being busy or worse, spend a lot of time looking busy. This busy-body, chatty-catty approach to production is adding to the noise in the work place that may be drowning out the true information, the true surprise. True information should have us bolting out of our folding recliners on the beach and doing backflips on the sand. I am not seeing this and at times wonder if Americans have the capacity to provide any more surprise moments.

Some may argue that the internet is one of those surprise moments and I would remind them that the surprise is now an echo reverberating from over fifty years ago. The internet has now become a commodity, the advanced communications platform supporting more than just voice communications. Today I can review documents to determine their level of confidentiality and privilege from my home office. I can use my computer screen to watch news programming, movies, or television shows accessed from content delivery networks operating on the internet. I can meet with colleagues and receive updates on case progress or to simply have a virtual happy hour via video services on the internet.

But I still see more waste than value. I don’t see an increase in value, just tasks that were done one way in analog being done another way in digital. Social media, the internet’s most recognized application, has torn the scab off of American narcissism. The “democratization of information content” promised by internet proponents is devolving into 25-year old women and men taking Instagram booty shots, hoping against all odds to be the next sexy sensation, in a digital world crawling with other sexy sensations.

Democratization of the internet has made data that was always available but harder to find easier to find but of less value. Inaccessibility made the hunt fun. A search premium that captured the inaccessibility variable created a lucrative business for the information broker or trader. Information should be subject to market forces. The internet in general and social media in particular are destroying the market mechanism for trading information.

Social media in particular has introduced severe imbalances in the information markets where a social media subscriber’s information is acquired under the rule of discovery, swimming around unbound like Moby Dick waiting for Captain Ahab to put a spear in him. This problem could be resolved by making social media and other interactive computer access services or internet portals bear the burden of liability where the capture and use of information results in harm to the subscriber and third parties that are exposed to it.

Removing the liability shield provided by Section 230 of the Communications Act of 1934 as amended by the Communications Decency Act of 1998 would force interactive computer access services to provide the public with a business model that better replicates the interchange one should see in a market.

On a base market tier, for example, an interactive computer access service would offer a subscriber access to its posting services in exchange for use of the subscriber’s data and permission to edit subscriber content where publication of the content violated community mores of decency or would otherwise expose the interactive computer access service to claims of defamation or liability.

On a prime market tier, the subscriber would pay the interactive computer access provider for the privilege to post content, grant the interactive computer access service the right to collect and use certain subscriber proprietary information, and accept damages stemming from claims of liability or defamation brought by a third-party.

One upside to this approach would be the reduction in noise occurring on the internet as a result of the democratization of content. Fewer subscribers over all would post content that raises the specter of liability. Depending on the tier of services offered, interactive computer services would be free to edit content that did not meet their platform guidelines while protecting themselves from third-party liability or receive a premium from subscribers that can be used to insure the interactive computer access service from claims of liability or defamation.

Information should flow freely, like the bulls of Pamplona, but the markets should discipline their exchange. Government, as a facilitator of markets, can encourage more market behavior for information by repealing Section 230 and allowing contract to regulate the market between interactive computer access services and subscribers.

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

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.