Well, that was depressing.
Nobody should expect anything of value to emerge from these congressional committee hearings. They aren’t designed for it. These tech company CEOs have had between six and 16 years of practice at not saying anything controversial, trained by the finest lawyers money can buy. The infinite panel of politicians generally weren’t asking probing questions, but instead ranted and raved about things they often didn’t seem to understand.
Broadly speaking, the hearing was meant to cover social media’s role in promoting extremism, but the subtext was to see if these social platforms still deserve legal protections. Section 230 (s230) is a general immunity afforded to websites that host content produced by other people. Put (very) simply, you can’t, as a platform, be held liable for content someone publishes on your site that you didn’t know about. Essentially, no matter what its users write, Facebook won’t be held accountable for it.
The time for self-regulation is over. It’s time we legislate to hold you accountable. – Representative Frank Pallone
Fortunately, we don’t need yesterday’s hearing to understand what Facebook, Google and Twitter are thinking about. The real meat was in the opening statements released the day before the hearing. Of course, it requires a measure of Kremlinology to dissect what exactly is being said, but the CEOs responses are all telling nonetheless.
Zuckerberg says, rightly, that people are arguing “for contradictory reasons — that the law is doing more harm than good.” (This is, essentially, because it’s the one legal protection that benefits Big Tech rather than the wider business world, so it’s the lawmakers’ only direct weapon beyond writing new laws.) He advocates for Congress making s230 protection “conditional on companies’ ability to meet best practices to combat the spread of this content,” adding that “platforms should be required to demonstrate that they have systems in place for identifying unlawful content and removing it.”
Essentially, you only get the benefit of s230 protection if you have robust moderation tools and policies. He adds that “platforms should not be held liable if a particular piece of content evades its detection,” which is “impractical for platforms with billions of posts per day.” In order to talk about adequacy, Zuckerberg recommends something that Facebook is increasingly relying upon these days. “Definitions of an adequate system could be proportionate to platform size and set by a third party,” a body that ensures that “practices are fair and clear for companies to understand.”
The clear takeaway from today’s hearing is that platforms need to do far more to combat harmful information but they also can’t moderate at all because they need to be neutral platforms that do not exercise any editorial discretion.
— Jeff Kosseff (@jkosseff) March 25, 2021
Of course, the system that Zuckerberg is advocating is essentially the status quo, at least for the social network itself. It can already demonstrate that it has a system in place for identifying unlawful content, and its own third party, the Facebook Oversight Board, to which it could refer such constitutional questions. What this tweak to the rules would do, however, is potentially box out any challengers looking to set up a rival social platform.
Professor Jeff Kosseff, a Section 230 expert and author of the book The Twenty Six Words That Created the Internet, said in an interview with Engadget early last year about s230 reform that weakening those protections may even be good for Facebook. “There are other platforms,” he said, “and Facebook probably won’t be harmed as much by repeal.” Facebook is big enough, and wealthy enough, that it can both afford to deal with the flurry of early litigation, and has a substantial moderation platform.
What it will do, however, is force rival platforms — that may lack the resources available to a company with close to $29 billion in annual profit — to fight wars on many fronts. Last year, Kosseff pointed to Yelp as an example, saying that if a restaurant gets a one-star review, under s230, it doesn’t have to do anything. If, however, the aggrieved restaurateur gets involved, Yelp will either need to go to court (an expensive, time-consuming ordeal) or delete the review (thereby reducing its usefulness). A cynic would, at this point, mention that Facebook has its own restaurant listings, which host their own reviews.
Sundar Pichai, meanwhile, is the only CEO who speaks out in favor of s230 as it currently stands, without any alteration. This is likely because Google is able to evade much of the criticism that Facebook receives due to the way its ownership of YouTube is structured. Certainly, most of the questions directed at YouTube on Thursday were around its Kids product, rather than its content moderation. (Earlier this week The Washington Post asked why Susan Wojcicki, YouTube CEO, isn’t given more regulatory scrutiny given YouTube’s role in spreading conspiracy theories and extremist content more generally.)
At Thursday’s hearing, Dorsey let his frustration show more than either of his counterparts. He treated the proceedings with a degree of contempt and, as it wore on, made less effort to hide his feelings. Dorsey’s responses came across as if he felt many of the questions directed to him were beneath him. That wasn’t helped by the fact that the CEO was tweeting during the hearing, and liked several responses that were critical of the committee’s questions. At one point, he said “I don’t think we should be the arbiters of truth,” before sharply adding that he didn’t “think the government should be either.”
Dorsey’s statement is the only one that doesn’t mention s230 by name or make a proposal for its reform. His interest has moved toward both Bitcoin, Blockchain and decentralization more generally, so perhaps he no longer sees the value in US legislation. His Bluesky project essentially places the power of the platform into the hands of its users, and others who wish to get involved. That means there’s less need for Twitter to find an acceptable way of reforming s230, since it’s looking to build something entirely distinct.
You could suggest that each company’s statement on s230 is a reflection of their general values and attitude. Facebook wants to tweak the law to potentially weaken competitors, Google is hoping not to make waves, but won’t shout for the status quo too loudly, while Twitter is already mentally elsewhere. Unfortunately for Zuckerberg, Pichai and Dorsey, none of those positions are likely to sate politicians who understand that something needs to change, but aren’t sure what.