Talk about timing.
On Jan. 7, 2021, less than 24 hours following the attack on the U.S. Capitol, the Los Angeles Times published a defense of “Section 230,” the legislative language that many have identified as being a key enabler for the social media-fueled assault against the legislative branch.
It’s likely to be the last robust defense for a while.
In the run-up to the ransacking of the Capitol in support of former President Donald Trump’s campaign to overturn the election of his successor President Joseph Biden, and now in its aftermath, many have debated the question embedded in the 26 key words in a paragraph that was part of a massive 1996 telecommunications law — words that many say in fact created the Internet as we know it.
In one sense, the issue is fairly straightforward: is an online social media “platform” publishing secondhand content responsible for its truthfulness the way that the New York Times is, or for that matter, Urbānitūs?
No, they are not, argued UCLA Law School professor Alex Alben in his Jan. 7 L.A, Times op ed piece defending the clause passed before Google, Facebook, Twitter or YouTube even existed.
“….eliminating Section 230 would result in less expression on social media platforms,” Alben wrote. “And yet, it would do nothing to increase accountability or transparency on social platforms like Facebook and Twitter.”
Within hours following the piece’s publication, a tidal wave of criticism broke over long-standing Section 230 justifications such as Professor Alben’s that equate free speech and open mics with the workings of social media companies. Public consternation with social media increased the next day, as Facebook and Twitter banned President Trump, limiting his access to millions of followers.
The debate has hardly slowed since. And while the most immediate focus is on the future ability of the Tech Titans to enjoy protections as simple purveyors of information created by others, the implications of the debate ultimately carry great portent for the future of the digital economy in general. This is only one skirmish in a much larger and fast-evolving war, as Facebook and other companies face challenges over their data privacy policies, countries from France to Australia mull ways to force Google to share ad revenue with the news organizations providing the content it traffics, and many in Congress and elsewhere are calling for the outright breakup of the companies as anti-competitive monopolies. Even Wall Street’s hedge fund “masters of the universe” now find themselves squarely in competition with the social media platform Reddit, as GameStop shares shot into the stock stratosphere as a result of “interactive computer service” activists supposedly seeking market “revenge” against hedge fund managers who shorted the company’s stock. Most significantly, the Reddit episode shows how Wall Street is suddenly being exposed to the same types of social media disruption that has upended the political “marketplace of ideas” and the legitimacy of America’s constitutional system itself. Democracy against democracy.
Apple, meanwhile, has opened yet a new front in the battle, challenging its would-be peers by limiting access to its app store by Facebook and other social media companies who fail to clean up their practices related to disinformation and user data tracking privacy.
The downstream implications for emerging technology hubs like Austin are impossible to foresee. But they go far beyond just the substantial and growing footprint all have in the city. Debate over Section 230 is already animating proposals to bust up the tech giants, and that discussion alone could dampen venture capitalists’ enthusiasm for start-ups created with hopes for acquisition by Big Tech. Anything slowing America’s frenzy for innovation could damage the demand for the engineering and development talent that has so energized the economies of cities like Austin, Denver, Miami and others.
But it’s hard to say what can happen when Goliaths are reduced to mere scrappy Davids. The break-up of Standard Oil in 1911, for example, is often cited as among the reasons that independent wildcatters were able to create Texas’ legendary oil wealth. Or consider the virtually free voice telephone service you enjoy today, an indirect result of the 1984 breakup of the corporate leviathan AT&T. One can argue the Zoom-driven growth in distributed work, accelerating toward places such as Austin amid a pandemic, traces back to this federal action nearly four decades ago.
But back to the critical 26 words in Section 260. Originally written to promote the development and commercial expansion of nascent Internet services in their 1990’s infancy, the paragraph in the 1996 Communications Decency Act was designed to shield Internet service providers, or ISPs, from being held liable for what their millions of users “published” on their Internet platforms. The law even went so far as to describe them as “Good Samaritans.” Remember, this law was created a year before the term “social media” had been invented. (For a definitive account of Section 230’s legislative history and post-passage court rulings, see the Electronic Frontier Foundation’s website.)
As such, Section 230 sought to clarify whether the emerging interactive ISPs were “publishers,” “broadcasters,” or “common carriers.” It defined a no-longer-existing technology, and there’s the rub.
The role of social media in promoting activities such as those of Jan. 6 and the GameStop stock market manipulations have resulted in a shifting of the political tectonic plates that enable and govern the digital economy. Is it more important to shield the Internet’s growth and development from overregulation by allowing social media to operate in lightly regulated “safe harbors”, along the lines of Section 230? Or should social media companies be required to operate in the public interest as well as in furthering their own bottom lines? And who should have the power to define which regulations are in the “public interest’ and which are “excessive?” There are as yet no clear answers, but the discussion is only beginning as foreshadowed in a discussion last fall at the University of Texas at Austin’s Strauss Center.
Before discussing whether to replace Section 230 with some new legal and policy basis for regulation of Internet activities, it is necessary to understand some features of the regulatory status of the three major forms of communication inherited from the 20th Century prior to the Internet’s development.
Communication regulation: a tale of three telecommunications ‘Islands’
Historically, the topography of 20th Century communications regulation is a tale of three regulatory islands: those occupied by publishers, broadcasters, and common carriers. Prior to the digital Internet’s development in the 1990s, where each of these services stood in relationship to the regulatory landscape and First Amendment protections were fairly well-defined by regulations corresponding closely to the boundaries of each service’s discrete analog communications technology. Analog telephone, AM-FM broadcasting, and fax image transmissions operated in their own discrete wired and wireless pathways. This neat technology-regulatory congruence was upended by computerized digital convergence, which merged publishing, broadcasting and public communications into massive data streams of ones and zeros, transforming the technological topography far ahead of the regulatory re-mapping required to restore a technology-regulatory congruence. But first, an overview of where we are.
Publishers — the established ‘old money’
The first regulatory island is covered with the mansions belonging to the most established and “old money” of our three – the venerated commercial publishing houses, which include newspapers, magazines, and books, both on paper and now online. Evolving into a mass market a few hundred years following the 1451 invention of Johannes Gutenberg’s famous printing press, this regulatory tradition applies to individuals and privately-owned companies that control and own the content (stories, photos, ads, etc.) appearing in their paper or electronic publications. While they earn some revenues from subscriptions, the publishers’ big money comes not from the stories and photos they sell to subscribers, but from use of the stories and photos to attract those media consumers to whom advertisers want to pitch their ad. In short, publishers buy content to attract the eyeballs they sell to advertisers. Content is king.
A “publisher” has the most First Amendment protection for whatever content it chooses to disseminate in pursuit of maximizing its profitability. The rub, though, is that a publisher is also liable for that content. A print or electronic publisher decides what content will grace its pages or websites, with little or no interference as to the nature of that content from federal or lower-level government entities. At the same time, they may be sued or prosecuted for disseminating content that is false, slanderous, or seditious. As a private company, a publisher is not “censoring” content if it decides, for instance, not to print a letter to the editor, or any other content. At the same time, a publisher is pressured by profitability concerns not to alienate advertisers or subscribers, walking a content tightrope stretched between community standards and titillating, fear-mongering, and conspiratorial subject matter attracting the biggest mass audience.
Broadcasters — on the disappearing island
On a nearby, much smaller (and shrinking) island of our regulatory archipelago are the electronic radio and television broadcasters stretched out in the shade of their impressive, but rusting antennas. While they, like the publishers, own their content (news stories, fictional entertainment, reality shows, etc.), their reach far exceeds that of the publishers, owing to the power of their massive antennas to blast their content far and wide to millions of consumers via the very limited number of channels in the electromagnetic spectrum.
U.S. broadcasters’ relationship to First Amendment guarantees of free speech has long been a ticklish affair. Unlike many industrialized countries that own public broadcasters, such as the BBC in the United Kingdom, the United States went a different direction by licensing private companies to operate, and profit from, broadcast services allocated channels of very limited, public-owned spectrum. During most of the 20th Century, this scarcity of broadcast channel space justified regulatory limitations on broadcasters’ ability to air certain kinds of content, most visibly represented by the “Fairness Doctrine” that required broadcasters to air multiple sides of “controversial opinions of public importance” before its repeal in 1987. Broadcasters continue to face liability issues for content deemed as violating community standards or harmful to children. The Federal Communication Commission, or FCC, created by Congress in 1934, continues to regulate and enforce licensing processes and content standards on behalf of the federal government’s efforts to ensure use of the airwaves in the public’s interest. However, by the mid-1980s, technological innovations led to major expansions in the number of channels available to television viewers via satellite and cable channels, weakening governmental arguments justifying First Amendment limitations. Looking ahead, even this minimal level of governmental oversight of broadcasters will likely disappear as the broadcasting industry moves away from on-air broadcasts onto streaming media over 5G networks, leaving only quaint memories of the VHF-UHF broadcast services predating the Internet. However, as broadcasters move into the online environment, they will find themselves subject to the same new regulations that are now being developed for other Internet and social media providers.
Common Carriers — the big island of the wired world
The third island, that of the common carriers, is the largest and the most wired of the three, both in terms of infrastructure and users. The common carriers are descendants of the 19th Century inventions of Alexander Graham Bell (the telephone) and Samuel F.B. Morse (the telegraph). And like another 19th century invention, the railroads, the business model of telephone, cell service, and other communication common carrier companies is to build and operate pieces of the national network infrastructure that allows others to produce and share their own content (telephone conversations, texts, audio conferences, etc.). Unlike publishers and broadcasters, whose business model involves sharing advertiser-supported content from one source (their own), to many customers, common carriers’ primary business model is to get money from users who pay for network access so they can communicate with one another one-to-one or in small groups or to access content provided by online publishers and broadcasters.
Just as the railroads became subject to government regulation through the Interstate Commerce Act of 1887, communication common carrier networks became subject to government regulation by the FCC, due to their potential to create winners and losers by stifling competition if they were to favor certain types of customers over others. Therefore, phone companies and other communication common carriers have been traditionally heavily regulated by government fiat to ensure network maintenance, equal user access, and non-interference in user content carried over their networks (i.e., today a.k.a. “net neutrality”). This model of intense government regulation, in combination with private ownership, led to the creation of a regulated monopoly, AT&T, which at one time was the largest company in America.
In general, common carriers, barred from owning, controlling, and profiting from the content being carried on their wires and airwaves, are shielded from legal liability for the content their users create. A cell phone network operator neither owns nor controls what its users exchange and disseminate over its infrastructure. Neither is it liable for that content. So if a subscribing smartphone user is planning an insurrectionist attack against the U.S. Capitol, Verizon or AT&T or T-Mobile find their island to be a safe harbor from legal prosecution for what their users do with their network access.
Island or safe harbor? The emergence of Internet regulation and section 230
And then in the 1990s digital convergence happened, eroding this analog-era, long-standing regulatory three islands metaphor as technological tsunamis of Internet services threaten to submerge them into undifferentiated currents of data streams. The occupiers of each island gazed covetously at the profits to be had if they could inter-connect their networks. And since the 1990s, that is exactly where hundreds of millions of lobbying dollars have been invested – up-ending the regulatory barriers that kept each island distinct from the others, all the while cherry picking the legal protections – the result being Section 230 and elimination of net neutrality. The question is, where does regulation of social media go from here? Innovative technologies have created massive technology companies that are overwhelming the public interest and fair marketplace regulatory regimes established for analog telecommunications platforms of yore. If Jan. 6 and the surveillance capitalism business models of FAANG point to one thing, it’s that social media in their current regulatory islands are toxic to a reality-based system of governance.
Time to find another island.
Editor’s note: This article is co-authored by Larry F. Martinez.
Larry F. Martinez is a researcher, scholar, and teacher on the governance of cyberspace and outer space whose book, Communications Satellites: Power Politics in Space analyzes the politicization of outer space management due to cyberspace conflict. He is an emeritus professor in the Political Science Department at California State University at Long Beach where he established a technology assessment curriculum involving simulation learning about cyberspace and outer space conflict resolution. As an official observer for the International Institute of Space Law at meetings of the United Nations Committee on Peaceful Uses of Outer Space, Martinez’s publications about the UN’s efforts focus on the intersection of cyber security issues and outer space governance as countries become increasingly dependent on unfettered use of low earth orbital regions in the 2019 article in Global Sustainability published by Cambridge.
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