Should Social Media be regulated by Gov?
While the courts are still deciding who regulates access to the Internet. The conversations taking place online are growing increasingly tense.
The False Assumption
On the false assumption, that’s being made is you either are a neutral platform or you moderate the content. And that’s a false choice. And that’s not what the law requires.
The law says you can be whatever type of platform you want. And when you remove content that you consider to be objectionable, you’re not going to assume liability for that.
I think, for the most part, tech companies don’t want their content to lead to unlawful activity, but they actually have a huge challenge when it comes to the recent activities of the president’s tweet that in some way could have been perceived as inciting violence.
Twitter obviously came through and said, hey, we’re just going to mark this as a potential for that. Facebook, Mark Zuckerberg basically said Facebook is staying out of it because they’re not the arbiter of anybody’s troop.
When it came to President Trump’s executive order, there’s a lot of different components in it that are worth unpacking. But I think one of the most terrifying parts of it involves a suggestion that the government should be setting ground rules for what speech is or is not allowed on a platform.
1996 Communications Decency Act
That suggestion was first explored in the 1996 Communications Decency Act aimed at curtailing the presence of pornography and illicit activity on the Internet.
The entire Communications Decency Act was found to violate the First Amendment, except for Section 230. Those two important provisions.
- One, it makes clear what is called conduit immunity, which basically says if you are just the intermediary, you are not responsible for the content that is transmitted. A good example would be in a library.
- But the more important provision is the second section which made clear that platforms could moderate content that could remove lewd, lascivious, or otherwise objectionable content without assuming liability or either the removal of that content or the failure to catch any content that they didn’t remove.
Section 230 empowers somebody who’s setting up a social media Web site for cat lovers to remove any dog-related content.
In effect, President Trump’s executive order would change how social media platforms are treated under the law and consider them publishers, which could make them liable for all content written on their sites. Just like media organizations.
The DOJ has been working on this for about a year. But it does dovetail with the president’s recent executive order, which requires the FCC or would at least ask the FCC to promulgate new regulations in this space as well. It wants Congress to rewrite Section 230 of the Communications Decency Act to remove the liability shield for civil action if platforms are found to facilitate or solicit federal criminal activity, such as fraud or scams.
All of these changes could upend the business model for tech’s biggest companies. Industry groups are against it. And the big caveat here is that the DOJ cannot do this alone. It would need Congress to act.
We have don’t have a regulatory chief that really can look at the Internet in its 21st-century form, let alone the extent to which is equitably available to everybody.
The Digital Divide
There are those who have and those who don’t have adequate connectivity in their workplace, their home, and now those two combined or in the equipment to hand in the laptops, to have in and the service they have.
In many respects, the digital divide is really leading to digital invisibility, which has foreclosed on the opportunities that technology has for people to participate and engage in our society.
The Internet saw lots of successes through private research, funded in partnership with the government, and eventually handed over to private companies. While there have been some reports of governments attempting to create their own Internet service providers, private organizations are taking the lead in developing the infrastructure to bring the world’s online.
Facebook has launched partnerships with South Asian countries like Bangladesh to provide free connectivity to those in need. However, the platform provided by companies like Facebook could, without proper regulations and guidance, do more harm than good. For example, some blame Facebook for its role in the persecution of the Rohingya people in Myanmar.
With the public square continuing to move outside of downtown and online, digital stakeholders will have increasing power over the global conversation.
I think we get caught up in this us versus them argument around the private sector and who regulates the Internet. And I think what COVID 19 has actually revealed is that it’s not about who owns the Internet. It’s about can it get to everyone who needs it.