Over at Discourse magazine this week, my R Street colleague Jonathan Cannon and I have posted a new essay on how it has been “Quite a Fall for Digital Tech.” We mean that both in the sense that the last few months have witnessed serious market turmoil for some of America’s leading tech companies, but also that the political situation for digital tech more generally has become perilous. Plenty of people on the Left and the Right now want a pound of flesh from the info-tech sector, and the starting cut at the body involves Section 230, the 1996 law that shields digital platforms from liability for content posted by third parties.

With the Supreme Court recently announcing it will hear Gonzalez v. Google, a case that could significantly narrow the scope of Section 230, the stakes have grown higher. It was already the case that federal and state lawmakers were looking to chip away at Sec. 230’s protections through an endless variety of regulatory measures. But if the Court guts Sec. 230 in Gonzalez, then it will really be open season on tech companies, as lawsuits will fly at every juncture whenever someone does not like a particular content moderation decision. Cannon and I note in our new essay that,

if the court moves to weaken liability protections for digital platforms, the ramifications will be profoundly negative. While many critics today complain that the law’s liability protections have been too generous, the reality is that Section 230 has been the legal linchpin supporting the permissionless innovation model that fueled America’s commanding lead in the digital information revolution. Thanks to the law, digital entrepreneurs have been free to launch bold new ideas without fear of punishing lawsuits or regulatory shenanigans. This has boosted economic growth and dramatically broadened consumer information and communications options.

Many critics of Sec. 230 claim that reforms are needed to “rein in Big Tech.” But, ironically, gutting Sec. 230 would probably only make big tech companies even bigger because the smaller players in the market would struggle to deal with the mountains of regulations and lawsuits that would come about in its absence. Cannon and I continue on to explore what it means for the next generation of online innovators if these court cases go badly and Section 230 is scaled back or gutted:

Section 230 has been a legal cornerstone of the entire ecosystem. All the large-scale platforms we depend on for our online experience would never have gotten off the ground without its protection. […] More importantly, these platforms have relied on being able to host third-party content without fear of opening a Pandora’s box of private litigation and endless challenges from governments. By removing these protections, platforms will be forced to significantly increase their moderation practices to reduce risk of suits from zealous litigants. Besides the chilling effect this will have on speech, it also will put up a cost-prohibitive barrier for smaller entrants who lack the resources to have an army of content moderators to find and eliminate undesirable content.

The broader effect on market dynamism and the nation’s technological competitiveness will be profound as permissionless innovation is replaced by mountains of top-down permission slips. “If America’s digital sector gets kneecapped by the Supreme Court, or if new regulations or legislative proposals scale back Section 230 protections, it will be significantly more difficult for U.S. firms to continue to lead in the development and commercialization of new technologies,” we conclude.

Jump over to Discourse to read the entire piece.

My colleague Wayne Brough and I recently went on the “Kibbe on Liberty” show to discuss how to discuss the state of free speech on the internet. We explained how censorship is a Big Government problem, not a Big Tech problem. Here’s the complete description of the show and the link to the full episode is below.

” With Elon Musk’s purchase of Twitter, we are in the middle of a national debate about the tension between censorship and free expression online. On the Right, many people are calling for government to rein in what they perceive as the excesses of Big Tech companies, while the Left wants the government to crack down on speech they deem dangerous. Both approaches make the same mistake of giving politicians authority over what we are allowed to say and hear. And with recent revelations about government agents leaning on social media companies to censor speech, it’s clear that when it comes to the online conversation, there’s no such thing as a purely private company.”

For more on this issues, please see: “The Classical Liberal Approach to Digital Media Free Speech Issues.”

I have been covering telecom and Internet policy for almost 30 years now. During much of that time – which included a nine year stint at the Heritage Foundation — I have interacted with conservatives on various policy issues and often worked very closely with them to advance certain reforms.

If I divided my time in Tech Policy Land into two big chunks of time, I’d say the biggest tech-related policy issue for conservatives during the first 15 years I was in the business (roughly 1990 – 2005) was preventing the resurrection of the so-called Fairness Doctrine. And the biggest issue during the second 15-year period (roughly 2005 – present) was stopping the imposition of “Net neutrality” mandates on the Internet. In both cases, conservatives vociferously blasted the notion that unelected government bureaucrats should sit in judgment of what constituted “fairness” in media or “neutrality” online.

Many conservatives are suddenly changing their tune, however. President Trump and Sen. Ted Cruz, for example, have been increasingly critical of both traditional media and new tech companies in various public statements and suggested an openness to increased regulation. The President has gone after old and new media outlets alike, while Sen. Cruz (along with others like Sen. Lindsay Graham) has suggested during congressional hearings that increased oversight of social media platforms is needed, including potential antitrust action.

Meanwhile, during his short time in office, Sen. Josh Hawley (R-Mo.) has become one of the most vocal Internet critics on the Right. In a shockingly-worded USA Today editorial in late May, Hawley said, “social media wastes our time and resources” and is “a field of little productive value” that have only “given us an addiction economy.” He even referred to these sites as “parasites” and blamed them for a long list of social problems, leading him to suggest that, “we’d be better off if Facebook disappeared” along with various other sites and services.

Hawley’s moral panic over social media has now bubbled over into a regulatory crusade that would unleash federal bureaucrats on the Internet in an attempt to dictate “fair” speech on the Internet. He has introduced an astonishing piece of legislation aimed at undoing the liability protections that Internet providers rely upon to provide open platforms for speech and commerce. If Hawley’s absurdly misnamed new “Ending Support for Internet Censorship Act” is implemented, it would essentially combine the core elements of the Fairness Doctrine and Net Neutrality to create a massive new regulatory regime for the Internet.

The bill would gut the immunities Internet companies enjoy under 47 USC 230 (“Section 230”) of the Communications Decency Act. Eric Goldman of the Santa Clara University School of Law has described Section 230 as the “best Internet law” and “a big part of the reason why the Internet has been such a massive success.” Indeed, as I pointed out in a Forbes column on the occasion of its 15^th anniversary, Section 230 is “the foundation of our Internet freedoms” because it gives online intermediaries generous leeway to determine what content and commerce travels over their systems without the fear that they will be overwhelmed by lawsuits if other parties object to some of that content.

The Hawley bill would overturn this important legal framework for Internet freedom and instead replace it with a new “permissioned” approach. In true “Mother-May-I” style, Internet companies would need to apply for an “immunity certification” from the FTC, which would undertake investigations to determine if the petitioning platform satisfied a “requirement of politically unbiased content moderation.”

The vague language of the measure is an open invitation to massive political abuse. The entirety of the bill hinges upon the ability of Federal Trade Commission officials to define and enforce “political neutrality” online. Let’s consider what this will mean in practice.

Under the bill, the FTC must evaluate whether platforms have engaged in “politically biased moderation,” which is defined as moderation practices that are supposedly, “designed to negatively affect” or “disproportionately restricts or promote access to … a political party, political candidate, or political viewpoint.” As Blake Reid of the University of Colorado Law School rightly asks, “How, exactly, is the FTC supposed to figure out what the baseline is for ‘disproportionately restricting or promoting’? How much access or availability to information about political parties, candidates, or viewpoints is enough, or not enough, or too much?”

There is no Goldilocks formula for getting things just right when it comes to content moderation. It’s a trial-and-error process that is nightmarishly difficult because of the endless eye-of-the-beholder problems associated with constructing acceptable use policies for large speech platforms. We struggled with the same issues in the broadcast and cable era, but they have been magnified a million-fold in the era of the global Internet with the endless tsunami of new content that hits our screens and devices every day. “Do we want less moderation?” asks Sec, 230 guru Jeff Kosseff. “I think we need to look at that question hard.  Because we’re seeing two competing criticisms of Section 230,” he notes. “Some argue that there is too much moderation, others argue that there is not enough.”

The Hawley bill seems to imagine that a handful of FTC officials will magically be able to strike the right balance through regulatory investigations. That’s a pipe dream, of course, but let’s imagine for a moment that regulators could somehow sort through all the content on message boards, tweets, video clips, live streams, gaming sites, and whatever else, and then somehow figure out what constituted a violation of “political neutrality” in any given context. That would actually be a horrible result because let’s be perfectly clear about what that would really be: It would be a censorship board. By empowering unelected bureaucrats to make decisions about what constitutes “neutral” or “fair” speech, the Hawley measure would, as Elizabeth Nolan Brown of Reason summarizes, “put Washington in charge of Internet speech.” Or, as Sen. Ron Wyden argues more bluntly, the bill “will turn the federal government into Speech Police.” “Perhaps a more accurate title for this bill would be ‘Creating Internet Censorship Act,'” Eric Goldman is forced to conclude.

The measure is creating other strange bedfellows. You won’t see Berin Szoka of TechFreedom and Harold Feld of Public Knowledge ever agreeing on much, but they both quickly and correctly labelled Hawley’s bill a “Fairness Doctrine for the Internet.” That is quite right, and much like the old Fairness Doctrine, Hawley’s new Internet speech control regime would be open to endless political shenanigans as parties, policymakers, companies, and the various complainants line up to have their various political beefs heard and acted upon. “That’s the kind of thing Republicans said was unconstitutional (and subject to FCC agency capture and political manipulation) for decades,” says Daphne Keller of the Stanford Center for Internet & Society. Moreover, during the Net Neutrality holy wars, GOP conservatives endlessly blasted the notion that bureaucrats should be determining what constitute “neutrality” online because it, too, would result in abuses of the regulatory process. Yet, Sen. Hawley’s bill would now mandate that exact same thing.

What is even worse is that, as law professor Josh Blackman observes, “the bill also makes it exceedingly difficult to obtain a certification” because applicants need a supermajority of 4 of the 5 FTC Commissioners. This is public choice fiasco waiting to happen. Anyone who has studied the long, sordid history of broadcast radio and television licensing understands the danger associated with politicizing certification processes. The lawyers and lobbyists in the DC “swamp” will benefit from all the petitioning and paperwork, but it is not clear how creating a regulatory certification regime for Internet speech really benefits the general public (or even conservatives, for that matter).

Former FTC Commissioner Josh Wright identifies another obvious problem with the Hawley Bill: it “offers the choice of death by bureaucratic board or the plaintiffs’ bar.” That’s because by weakening Sec. 230’s protections, Hawley’s bill could open the floodgates to waves of frivolous legal claims in the courts if companies can’t get (or lose) certification. The irony of that result, of course, is that this bill could become a massive gift to the tort bar that Republicans love to hate!

Of course, if the law ever gets to court, it might be ruled unconstitutional. “The terms ‘politically biased’ and ‘moderation’ would have vagueness and overbreadth problems, as they can chill protected speech,” Josh Blackman argues. So it could, perhaps, be thrown out like earlier online censorship efforts. But a lot of harm could be done—both to online speech and competition—in the years leading up to a final determination about the law’s constitutionality by higher courts.

What is most outrageous about all this is that the core rationale behind Hawley’s effort—the idea that conservatives are somehow uniquely disadvantaged by large social media platforms—is utterly preposterous. In May, the Trump Administration launched a “tech bias” portal which “asked Americans to share their stories of suspected political bias.” The portal is already closed and it is unclear what, if anything, will come out of this effort. But this move and Hawley’s proposal point to the broader trend of conservatives getting more comfortable asking Big Government to redress imaginary grievances about supposed “bias” or “exclusion.”

In reality, today’s social media tools and platforms have been the greatest thing that ever happened to conservatives. Mr. Trump owes his presidency to his unparalleled ability to directly reach his audience through Twitter and other platforms. As recently as June 12, President Trump tweeted, “The Fake News has never been more dishonest than it is today. Thank goodness we can fight back on Social Media.” Well, there you have it!

Beyond the President, one need only peruse any social media site for a few minutes to find an endless stream of conservative perspectives on display. This isn’t exclusion; it’s amplification on steroids. Conservatives have more soapboxes to stand on and preach than ever before in the history of this nation.

Finally, if they were true to their philosophical priors, then conservatives also would not be insisting that they have any sort of “right” to be on any platform. These are private platforms, after all, and it is outrageous to suggest that conservatives (or any other person or group) are entitled to have a spot on any other them.

Some conservatives are fond of ridiculing liberals for being “snowflakes” when it comes to other free speech matters, such as free speech on college campuses. Many times they are right. But one has to ask who the real snowflakes are when conservative lawmakers are calling on regulatory bureaucracies to reorder speech on private platform based on the mythical fear of not getting “fair” treatment. One also cannot help but wonder if those conservatives have thought through how this new Internet regulatory regime will play out once a more liberal administration takes back the reins of power. Conservatives will only have themselves to blame when the Speech Police come for them.

Addendum: Several folks have pointed out another irony associated with Hawley’s bill is that it would greatly expand the powers of the administrative state, which conservatives already (correctly) feel has too much broad, unaccountable power. I should have said more on that point, but here’s a nice comment from David French of National Review, which alludes to that problem and then ties it back to my closing argument above: i.e., that this proposal will come back to haunt conservatives in the long-run:

when coercion locks in — especially when that coercion is tied to constitutionally suspect broad and vague policies that delegate immense powers to the federal government — conservatives should sound the alarm. One of the best ways to evaluate the merits of legislation is to ask yourself whether the bill would still seem wise if the power you give the government were to end up in the hands of your political opponents. Is Hawley striking a blow for freedom if he ends up handing oversight of Facebook’s political content to Bernie Sanders? I think not.

Additional thoughts on the Hawley bill:

Josh Wright

Daphne Keller

Blake Reid

TechFreedom

Josh Blackman

Sen. Ron Wyden

Jeff Kosseff

Eric Goldman

CCIA

NetChoice

Internet Association

David French at National Review

John Samples

This week I will again be attending the Family Online Safety Institute’s excellent annual summit. The 2-day affair brings together some of the world’s leading experts on online safety and privacy issues. It’s a great chance to learn about major developments in the field. As I was preparing for the session I am moderating on Thursday, I thought back to the first FOSI annual conference, which took place back in 2007. What is remarkable about that period compared to now is that there was a flurry of legislative and regulatory activity related to online child safety then that we simply do not see today.

In fact, just 3 1/2 years ago, John Morris of the Center for Democracy and Technology and I compile a legislative index [summary here] that cataloged the more than 30 legislative proposals that had been introduced in the the 110th session of Congress. There was also a great deal of interest in these issues within the regulatory community. Finally, countless state and local measures related to online safety and speech issues had been floated. Today, by contrast, it is hard for me to find any legislative measures focused on online safety regulation at the federal level, and I don’t see much activity at the agency level either. I haven’t surveyed state and local activity, but it seems like it has also died down.

Generally speaking, I think this is a good development since I am opposed to most proposals to regulate online speech, expression, or conduct. But let’s ignore the particular wisdom of such measures and ask a simple question: What explains the decline in Internet safety legislation and online content regulation? I believe there are three possible explanations:

1) The effectiveness of education and awareness-building strategies

I would like to believe that all the efforts made by various groups and individuals (including myself) to encourage policymakers to adopt  “Educate & Empower” approaches over “Legislative & Regulate” approaches are finally bearing fruit. The first instinct for many policymakers is to legislate immediately and then worry about the consequences later (if at all). But such approaches, no matter how well-intentioned, often backfire and have myriad unintended consequences (including the problem addressed next). So, perhaps it is the case that lawmakers and regulators are finally coming to realize that education and awareness approaches — married to empowerment-based efforts — are actually the more sensible approach compared to a flurry of legislative measures that ultimately accomplish very little.

2) The deterrent effect of inevitable and lengthy constitutional challenges

Here are two things I know for certain: First, almost every Internet-related measure faces a constitutional challenge, typically on First Amendment grounds (but sometimes also on Sec. 230 grounds). Second, most of those challenges succeed. I don’t have hard stats to back up this assertion, but I’d bet that there are few areas of modern law that have witnessed a higher percentage of successful constitutional challenges in recent years than the field of cyberlaw.  Taking that as a given, one must assume that at some point it becomes a deterrent to additional state action in this field.  Why waste years legislating and regulating if it is all enjoined and then overturned a short time later?

3) Resurgence of privacy as major policy issue and the emergence of cybersecurity as a policy issue

It could also be that case that privacy policy crowds out congressional interest in online safety legislation. In fact, it seems like these issues often move in opposing waves. When a wave of online safety legislative and regulatory activity is cresting, interest in privacy policy seems to fall. That certainly seemed to be the case between roughly 2005 and 2008 when online safety dominated congressional debates and privacy was hardly on the radar.  Today the reverse is true. Privacy has been the dominant Internet policy issue of the past year or so. It is sucking all the oxygen out of the room — whether that room is a congressional hearing room, a regulatory agency event, or even academic conferences.

Importantly, cybersecurity has rapidly emerged as a major new fault line in Internet policy debates. It, too, is eating up a lot of the “attention bandwidth” available among policymakers today.  And intellectual property matters always seem to be percolating out there.

It is my belief that because some of these Net policy issues are so complicated, policymakers are sometimes discouraged from doing a “deep dive” on them. To the extent they do, it seems unlikely that lawmakers are willing to invest serious time in more than a couple of these arcane matters at one time. Also, don’t forget how busy the relevant committees (Commerce and Judiciary) are with other, not tech policy-related matters. On any given legislative day, they could be handling a wide range of other policy issues that crowd out the amount of attention they can devote to Net policy matters, which are often far down the list of legislative priorities. Again, I’m generally pretty happy about that fact! I’d rather lawmakers go slow on these issues, whether the slow pace of the action is intentional or not.

So, what do you think? Are there other possible explanations for why we’ve seen less activity on the online safety / Internet content regulation front in recent years?

My latest Forbes column is a celebration of 47 U.S.C. §230, otherwise known as “Section 230.” Sec. 230 turns 15 years old this year and I argue that this important law has “helped foster the abundance of informational riches that lies at our fingertips today” and has served as “the foundation of our Internet freedoms.”  Sadly, however, few people have even heard of it. Worse yet, as I note in my essay, this important law is under attack from various academics and organizations who want it modified to address a variety of online problems. But, as I note:

If the threat of punishing liability is increased, the chilling effect on the free exchange of views and information would likely be quite profound. Many site administrators would immediately start removing massive amounts of content to avoid liability. More simply, they might just shut down any interactive features on their sites or limit service in other ways.

Head over to Forbes to read the rest. And here’s a graphic I put together illustrating all the new fault lines in the war against Sec. 230. It will be included in a new paper on the issue that I am wrapping up right now.

By Adam Thierer & Berin Szoka

Short but very important essay here from Santa Clara University Law School Prof. Eric Goldman about calls to alter Sec. 230 of the Communications Decency Act (CDA) to address concerns about online harassment. Generally speaking, Sec. 230 immunizes online intermediaries from punishing liability for the content that travels over their networks / services. Specifically, Sec. 230 stipulates that “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.” In other words: Don’t shoot the messenger!

As we’ve noted here before, it is probably not an overstatement to think of Sec. 230 as the very cornerstone of Internet Freedom, since it makes possible an online “utopia for utopias,” to borrow a phrase from our favorite modern political philosopher, the late Robert Nozick. Without Sec. 230, intermediaries would likely be forced to shut down many avenues of communication and would have to become deputized conduct and morality police for every cyber-street corner.

Goldman, America’s leading expert on Sec. 230-related jurisprudence, correctly notes that, “Frequently, § 230’s critics do not attack the immunization generally, but instead advocate a new limited exception for their pet concern.” He’s got that right. Indeed, we are increasingly hearing calls from numerous quarters these days to “tweak 230” for one pet concern after another. We’ve illustrated some of those concerns in this exhibit.

Deputization of the Middleman http://d1.scribdassets.com/ScribdViewer.swf Regulatory advocates can be found for each of these issues who like to see the protections afforded by Sec. 230 scaled back by Congress or he courts. But Goldman rightly warns:

Ars Technica has just posted the transcript of a friendly debate I recently engaged in with Harvard University law professor John Palfrey about the future of Section 230 of the Communications Decency Act and online liability more generally.  Our debate got started last fall, shortly after I penned a favorable review of John’s excellent new book (with Urs Gasser), Born Digital: Understanding the First Generation of Digital Natives.  [Listen to my podcast with John about it here.]  Although I enjoyed John’s book, I also raised some concerns about his call in the book to reopen and revise Section 230, specifically to address child safety concerns.  At the time, John and I were working together on the Berkman Center’s “Internet Safety Technical Task Force” and we decided to begin an e-mail exchange about the future of 230 and online liability norms more generally.  The result was the debate that Ars has just published.

In our exchange, I begin by asking John to more fully develop some statements and proposals he sets forth in Born Digital.  Specifically, he and co-author Urs Gasser argue that: “The scope of the immunity the CDA provides for online service providers is too broad” and that the law “should not preclude parents from bringing a claim of negligence against [a social networking site] for failing to protect the safety of its users.” They also suggest that “There is no reason why a social network should be protected from liability related to the safety of young people simply because its business operates online.” Specifically, the call for “strengthening private causes of action by clarifying that tort claims may be brought against online service providers when safety is at stake,” although they do not define those instances.

Using those proposals as a launching point for our discussion, I challenge John as follows:

I’m troubled by your proposals because I believe Section 230 has been crucial to the success of the Internet and the robust marketplace of online freedom of speech and expression. In many ways — whether intentional or not — Section 230 was the legal cornerstone that gave rise to many of the online freedoms we enjoy today. I fear that the proposal you have set forth could reverse that. It could lead to crushing liability for many online operators-and not just giants like MySpace or Facebook-that might not be able to absorb the litigation costs. Could you elaborate a bit more about your proposal and explain why you think the time has come to alter Section 230 and online liability norms?

And John does and then we go back-and-forth from there.  Again, you can read the whole exchange over at Ars.

It was a great pleasure to engage in this exchange with Prof. Palfrey and I look forward to what others have to say in response to our debate.  I am working on a longer paper looking broadly at the rising threats to Sec. 230 and the increasing calls for expanded online liability and middleman deputization.  I will use whatever feedback I get from this exchange to refine my paper and proposals.