During last week’s hearings about the industry’s role in the 2016 presidential election, one ominous moment for Big Tech came when California Senator Dianne Feinstein, the industry’s representative in Congress and a Democrat, addressed the social media companies. “You bear this responsibility. You created these platforms, and now they’re being misused. And you have to be the ones who do something about it, or we will,” she said.
So far, the talk about a crackdown on Big Tech is just talk. But Feinstein was knowingly hinting at one of the tech industry’s most prized laws — Section 230 of the 1996 Communications Decency Act, known as CDA 230. The law precludes companies from being held legally liable for the content their users post on their websites.
This protection allowed the modern internet to come into existence, the argument goes, because no one would be dumb enough to start a social media company if it were held liable for everything its users used the platform to do.
Even nibbling around the edges of the law would have disastrous impacts on the freedom of expression online — and on the entire economy of the internet. Tech has been winning this debate for years. But the industry’s argument has become less popular while it’s simultaneously being attacked for enabling Kremlin-funded internet trolls, jihadists seeking new recruits, distributors of fake news, and ad-hoc mobs singling people out for abuse.
The opposing view, held by advocates for victims of crime or harassment online, is that giving tech companies immunity removes any incentive they have to conduct due diligence. Danielle Citron, a professor at the University of Maryland Francis King Carey School of Law who also serves on Twitter’s Trust and Safety Council, co-authored a paper this summer entitled “The Internet Will Not Break,” which called for making the law’s immunity less sweeping. She sees political opportunity in each new revelation of tech’s ineffectual response to Russian meddling in last year’s election. “When you accept ads in rubles, you’re not acting responsibly,” she said. “Maybe they should have to internalize some of those costs.”
If the talk about a governmental pushback against tech has focused on geopolitics, the actual action has come on a much different issue. For years, the central front in the battle over CDA 230 has been how sites involved in sex trafficking have hidden behind it. The biggest player here would hardly be considered Big Tech. It’s Backpage.com, a Craiglist clone that has faced multiple lawsuits for its role in the online sex trade, that has regularly cited the law in its defense.
Earlier this year, 24 senators co-sponsored a bill to allow prosecutors to pursue companies whose platforms facilitate sex trafficking. Silicon Valley lined up in opposition, issuing strongly worded arguments through its trade associations. Opponents of the bill argued it was written in a way that would inspire legal action that would have little to do with human trafficking. Once the door was open, they argued, other aggrieved groups would inevitably begin pushing for the right to go after tech platforms, too, and the each ensuing exception would be easier to secure, slowly choking off the internet in installments.
Tech has shown the ability to turn arguments like these into populist energy. Alphabet Inc.’s Google, in particular, seemed to be preparing to go this path last month when it hired a lobbying firm run by people who nurtured the popular uprising of web users that defeated a 2012 internet piracy bill. But this time around, any such attempts failed, and opposition began to fall apart in recent weeks. The Internet Association, a trade group representing large companies including Facebook Inc., Google, and Twitter Inc., endorsed what it described as a compromise bill last week, saying the most problematic parts of the bill had been fixed in advance of a hearing this Wednesday. The companies declined to comment on the issue directly.
The new language tightened the focus on specific sex trafficking violations, which solved the technical opposition but did little to address the slippery slope argument. Many interpreted this move as Big Tech giving up the fight. Evan Engstrom of Engine, an advocacy group for startups that opposed the bill, blamed the hostile landscape of recent weeks. “At some point you have to say, ‘how much more are you going to pour into this?’ At least with the larger tech platforms, they have a lot of issues to deal with,” he said. The bill still has to go through the Senate, and then be taken up by the House and signed by the president to become law.
Like most tech policy issues, the narrative surrounding the negotiations focuses on the wrangling between the government and some of the world’s most powerful companies, but if any companies are well-positioned to handle the increased cost of business that new government regulation brings, it’s Google and Facebook. Engstrom said smaller companies with fewer resources would be in the worst position. The Electronic Frontier Foundation accused Big Tech of rolling over on a bill that would likely end up insulating them further from new competition. The intramural hostility illustrates a common attribute of tech policy debates, which are inevitably framed as clashes between the government and the most powerful companies in the world. But Facebook and Google are uniquely positioned to absorb new costs of doing business, making them problematic advocates for smaller companies whose priorities aren’t necessarily aligned.
Whether the about-face on the sex trafficking bill portends anything larger remains to be seen. But people in Washington see the internet as a much darker place than they did a year ago. “We went a long time when technology companies were seen as saviors, and they got preferential treatment,” said Eric Goldman, a law professor at Santa Clara University who studies internet law. “The pendulum has swung very hard in the way of fears and phobias.”
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