Let’s cast our minds back to the year 2011, Twitter had just unveiled the ability to share images and videos, the Arab Spring was cause for democratic hopes in the region, and the United States Congress was discussing the Stop Online Piracy Act (SOPA).
SOPA’s objective was to cut off sites like The Pirate Bay by having US-based search engines block access to them, as well as forbidding US payment services from providing funds to sites that carried out “theft of U.S. property”. But if you remember anything about SOPA, it’s the pushback that it faced. The bill allowed the government to take action against websites that “facilitated” piracy. That’s a pretty broad term and at the Freedom Online 2011 conference Bob Boorstin, Google’s then Public Policy Director, warned that the law wouldn’t even allow sites like YouTube to function given that they could be punished for the actions of their users.
That vagueness in language resulted in a lot of legitimate worry over the risk of sites having to censor the content posted by users in order to avoid being punished themselves. In the end, the tech industry’s concerns were taken seriously and the law was re-written, with both Democrats and Republicans responding to public worries. Now, we’re also seeing bipartisan unity on the question of internet freedom, but things have turned the other way.
Why are calls for the government to take action against social media platforms so loud now when a few years ago public sentiment ran the other way? Why does it matter? And what even is Section 230?
The Modern Public Square
Since their inception, social media platforms like Twitter and Facebook have had enormous growth. As of July 2020, Twitter had around 353 million active users, with Facebook topping the list of all social media platforms with a staggering 2.7 billion users. Both platforms are also incredibly vast, they follow the popular rule of the internet: “if you can think of it, it’s on there somewhere”. From cat videos to surrealist memes, pencil portraits to political propaganda, you can find it all on either platform. But, in recent years, people have also been logging on to get their news.
Surveys carried out by Pew Research estimate that around 68% of Americans get their news from social media as of 2018. That doesn’t mean people are getting their news from outlets like the BBC, The Washington Post or Fox News, they’re getting news from regular users that have amassed large followings or from new-media outlets that are mostly online operations.
A few problems here are that people might be subject to “reporting” that lacks the proper research or “journalists” who are not interested in truth. However, journalism is in serious crisis, and those issues are not unique to new-media news outlets. CNN, Fox News, Vox, The Guardian and many others have become ever more interested in selling narratives than even attempting to present facts. The news have always had biases in them, but those biases have gone from choosing to cover certain topics more than others to outright straight-feeding us propaganda on the issues their owners feel lie in their interests. So, it’s a good thing that people can log onto their preferred social media platform and have access to such a wide range of outlets and sources, giving them the tools to form their own opinions, and identify biases by themselves.
There’s a catch though, these platforms get to control what you can see, who can see what you publish and who you can contact on them. Most people could look at that and just say “well, they’re private companies, they can do what they want, if you don’t like it then use a different service.” While that statement might be correct in many instances, it lacks the nuance of this particular situation. As we’ve seen, these companies have an insane reach, their algorithms decide what links you see, what videos you’ll end up watching, what you’ll consider news, and (even more dangerous than any of that) what you’ll consider to be “true”.
They no longer sell some basic product that you can go buy somewhere else if you don’t like the Terms of Service, they have become the public square. These are the platforms on which political debate and political organization is now conducted, and their power around elections has now been confirmed.
Social Media Bias
The accusations of Silicon Valley being biased against conservatives aren’t new. While some would point at data from Facebook about number-of-interactions to push back against the claim, others can note how companies in the Valley seem to be ideological echo-chambers that have famously cracked down on dissent in the past.
The people who believe that these platforms are biased against conservatives felt vindicated this past May when Twitter decided to place a fact-check on one of US President Donald Trump’s tweets for the very first time. Response to that action was pretty varied but fell mostly along party lines, Republicans were outraged at Twitter and many Democrats were happy that they were finally fighting against some of Trump’s unfounded claims. But this backed Twitter into a tough corner. What now? Would Twitter actively fact-check every tweet? Only those of politicians? Politicians from where? Would it be only elected officials?
What ended up happening was that Twitter doubled down on their fact-check. They not only continued doing it to Trump, but they also started adding on different warnings for different types of tweets. Finally, we were on the cusp of the 2020 US Presidential elections, and Twitter went a step further than it ever had before.
On October 14th, 2020, the New York Post ran a story about Joe Biden’s son, Hunter Biden, regarding his overseas dealings in Ukraine. The story reveals that Hunter Biden did indeed peddle his family name in Ukraine in order to benefit himself financially, the emails also seem to suggest that Hunter spoke to his father about his business dealings, something that Joe has denied previously. Twitter decided to respond to this by blocking every link to the NY Post article that got shared on its platform, they soft-blocked links shared via Direct Message and they also suspended the Post’s twitter account. Just like that, a 200 year-old tabloid had its access to Twitter completely blocked.
The Post was eventually reinstated (in a rather confusing way), but the insane part of all this is that Twitter had no way of knowing if the article was true or false, they had no way of knowing if it was based on hacked materials (the reason Twitter alleges they blocked the link for), instead, Twitter decided that it knew. The NY Post got its account back because of the massive uproar that the incident caused, but that’s only because they have a large following. What could happen to smaller outlets or individuals that rely heavily on the exposure they stand to gain on Twitter under this type of guilty-until-proven-innocent justice?
Section 230
With this, talk of government action against social media companies has become popular once again, and maybe this time some real action could be taken. During the run up to the elections, both Donald Trump and Joe Biden spoke about repealing “Section 230 of the Communications Decency Act”. So what is it?
Section 230 is part of the Communications Decency Act of 1996, the Act’s original purpose was to limit internet freedom, but Section 230 was a safeguard introduced in order to ensure that social media companies could thrive without fear of being sued over what their users posted on their sites. The idea was to allow the internet some space to regulate itself, and allow social media companies to feature content produced by users without running the risk of being treated as the publishers of said content.
However, the internet has changed a lot since 1996. Back then companies didn’t regulate what was being published on their forums and platforms, now they do. Twitter, Facebook, and Instagram all regulate what users can or can’t post through the establishment and enforcement of community guidelines or hateful speech policies. So, if these companies get to review what gets published on their platforms, and they even get to decide what gets published and what doesn’t, aren’t they then acting as publishers? Why should they get to act as publishers without having to take up the ethical and legal responsibilities that they must observe? This is the special treatment that both Donald Trump and Joe Biden claimed they wished to end, Trump even produced an Executive Order back in May of 2020 instructing all executive agencies and departments to investigate the application of the protection and ensure that it is being properly used by social media companies.
While Twitter and Facebook’s actions are extremely worrying and dangerous given their reach and unique position in what is almost a private duopoly on free speech in the internet age, we’d do well to be careful, excessive limitations on these companies could give us a government monopoly on online freedom and well… that wouldn’t be a solution either.
The Dangers of Overcorrection
The truth is we’re not in the best of situations regarding internet freedom. Social media companies have amassed a worrying amount of power, but holding them responsible for what their users publish on their platforms will only lead to greater levels of self-censorship, their community guidelines will tighten, their enforcement will get tougher in an attempt to avoid any and all liability. Letting the government impose general guidelines for speech online would be at best equally terrible, but no one knows how bad it could actually get.
The clearest path forward might be civilian action to push companies into making their community guidelines clearer for everyone, and holding them accountable if they enforce non-existent policies, or when they stretch the scope of their policies beyond strict interpretation. Their freedom is truly in our best interest, but they have to help themselves and ultimately help us. Guidelines must become clearer, and they must stop acting like publishers, or they’ll be forcing the government’s hand, and only making us less free in the end.
Luis Gonzalez is a lawyer from Caracas, Venezuela currently working in private practice and is founder and co-editor of The Explorer. You can find him on Twitter at @lagm96.