Congress is learning a predictable lesson that blanket immunization of a technology from accountability to law enforcement, and normal societal responsibility to others, creates unjust and destructive outcomes from a double standard of justice.
Google, Amazon, Facebook, Uber, and Airbnb are also learning a predictable lesson that opposing the unopposable for self-serving business reasons spotlights their increasingly indefensible “Monopoly” “get-out-of-jail-free” card, Section 230 immunity, that’s available only in the U.S. for online platforms.
This lesson is happening because a bipartisan Senate bill -- the “Stop Enabling Sex Trafficking Act” (SESTA S.1693) -- proposes to amend Section 230 of the 1996 Communications Decency Act to clarify that its immunization of online platforms from liability was never intended to shield knowing enablement of child sex trafficking from criminal prosecution.
Tuesday, a Senate Commerce Committee hearing will spotlight the gravity and depravity of how this well-intentioned, Internet-infancy, law to advance freedom of speech online, has caused unacceptable unintended consequences today for the most vulnerable among us.
Section 230’s worst unintended consequence may be how it effectively thwarts criminal prosecution of Backpage.com, the notorious child sex-trafficking website, that has been kept in business for many years by the de facto legal defense fund and top-dollar legal and academic amicus support that Google and Internet Association members have lavished on Backpage legal defenses for many years.
In a nutshell, the 26 words of Section 230 that matter most are: “No provider or user or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider;” and what they have been interpreted by courts in practice to mean, is that an online intermediary has immunity from liability if it chooses to curate, or not curate, content of others on its platform.
Practically, victims of child sex trafficking have learned that the U.S. Government has maintained for two decades that an online platform basically can do no wrong.
Why Google, Amazon, Facebook, Uber, Airbnb, and other Internet Association online platforms all love Section 230, and fiercely defend it from change, is the huge commercial advantage that sweeping immunity from accountability and responsibility to others provides them over offline competitors that have no immunity to ignore the law or the safety of others.
If you are an online platform, what’s not to love about Section 230? Its all about them. They are the only potential victim that matters. It protects them, not users. It even protects them from real victims, who seek justice for those who enable the obvious heinous crime of child sex trafficking.
Through the courts Section 230 has transmogrified into can’t-lose situation that has had the unintended consequence of granting online platforms unacceptable unaccountability to conduct business on their platforms in ways that harm people and would never be tolerated in the offline world.
For dominant platforms like Google, Amazon, Facebook, Uber, and Airbnb, who have the best lawyers and leaders willing to push every available envelope of regulatory arbitrage -- Section 230 conveys frightening unaccountable market and societal power.
It is the unaccountable market power to eliminate sites, apps, products, services, content, voices, perspectives, and views that they don’t like with no real explanation, due process or recourse for those alleging harms, always knowing Section 230 immunity has their back.
Look at some of the perverse outcomes that have emerged when Congress grants a special technology sweeping permanent immunity from liability, accountability and responsibility to others.
Google: A month ago, Google banned Gab.ai, from Google Play because Google said “it violates the hate speech policy.” Gab.ai is an ad-free social network, that Wikipedia says was “created as an alternative to social networks like Facebook, Twitter and Reddit,” and has a mission of putting “people and free speech first.”
Last week Gab.ai filed an antitrust suit against Google apparently because it had no other recourse to continue to compete and maintain an alternative social network to Google, Facebook, Twitter and Reddit.
At the same time Google is regulating what it judges to be “hate speech,” a Buzzfeed investigation discovered that Google allows the equivalent of “hate ads” in its post: “Google allowed Advertisers to target people searching racist phrases.”
Section 230 autocratically enables Google to dictate what is banned “hate speech” by day, while making money from “hate ads by night.”
Facebook: A recent ProPublica investigation -- “Facebook Enabled Advertisers to Reach ‘Jew Haters’” --discovered Facebook facilitates and monetizes hate ads as well.
Also last week, the New York Times reported “Fake Russian Facebook Accounts Bought $100,000 in Political Ads,” i.e. Facebook shared fake ads for fake news exposing their fake objectivity.
And possibly worst of all, Section 230 immunity has enabled Facebook to become the ignominious live broadcaster of choice for those who torture, rape and murder.
Twitter: A recent Daily Beast investigation found that “Twitter Ads returned 26.3 million users that may respond” to racist terms.
Uber: A Harvard Business Review analysis catalogues how Uber envisioned Section 230 as a blank check to wholesale ignore offline city taxi, vehicle, and safety laws to corner much of the ride hailing market.
Airbnb: It should be no surprise that Wired documents how Airbnb has used Section 230 immunity to mimic Uber’s unaccountable strategy and systematically violate city hospitality, safety, real estate, and zoning laws and regulations to gain unbeatable market share in the online accommodations market.
In sum, if anyone has wondered why America’s Internet is still the Wild West, where no one’s identity, privacy, person, or property is safe, secure, or respected, a large reason is because in 1996 the U.S. Congress, immunized every U.S. online platform from much legal accountability and responsibility for what happens on their platforms.
Its great to be online platforms in America where section 230’s asymmetric regulation enables old masters of regulatory arbitrage, to be the new masters of the universe.
Imagine if the U.S. government passed a law that the Governors and Mayors of every state and city, were immunized permanently and in advance, from accountability and responsibility to their voters and to the laws of their states and cities.
Online platforms don’t have to imagine it, they enjoy Section 230 immunity from civil liability.
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Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google.
