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“Section 230 is not about neutrality. Period. Full stop.”
Sen. Ron Wyden (D-OR) is one of the co-authors of a law often credited with creating the internet as we know it — and he’s got a few things he’d like to clear up about it. Among them: It doesn’t mean private companies have to take a neutral stance about what is and isn’t allowed on their platforms.
“You can have a liberal platform. You can have conservative platforms. And the way this is going to come about is not through government but through the marketplace, citizens making choices, people choosing to invest,” he told Recode in a recent interview. “This is not about neutrality.”
The law in question is Section 230 of the Communications Decency Act of 1996. Written by Wyden and former Rep. Chris Cox (R-CA), the law declares that “no provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.” In other words, it protects internet companies from being held liable for the content posted by their users and says they’re platforms, not publishers. It also gives them the space to police their sites and restrict and take down material as they see fit. Wyden likes to describe it as a shield and a sword — platforms are shielded from liability, but they also get a sword to moderate the content they host.
Section 230 has been lauded as a “core pillar of internet freedom” and “the most important law protecting free speech online,” but that doesn’t mean it’s entirely uncontroversial. Last year, Congress passed FOSTA-SESTA, which amended 230 and made it easier for prosecutors to go after platforms whose sites are used by sex traffickers. To most, it seemed like a no-brainer: Sex trafficking is obviously bad and should be stopped. But detractors, including sex workers, warned it could actually cause further danger and push illicit activity into even deeper corners of the internet. Free internet advocates warned that platforms might censor content just to avoid risk and publicly fretted that other erosions to Section 230 could soon be on the horizon. (I have a full explainer on the debate around 230 and FOSTA-SESTA.)
Wyden and Sen. Rand Paul (R-KY) were the only two senators to oppose the legislation. The Internet Association, an internet lobbying group representing companies such as Facebook, Google, and Amazon, initially lobbied against FOSTA-SESTA. It later came out in support of the Senate bill, citing “important changes” to the legislation. But it’s worth noting that the decision was made days after corporate tech officials testified on Capitol Hill about Russian meddling in the 2016 elections. And the tech giants, as Wyden argues, aren’t so worried about Section 230’s protections now that they’re as big as they are — they now have the resources to fight liability lawsuits and better police their content; smaller competitors don’t.
Section 230 has come under scrutiny from some Republican lawmakers as well. Sens. Ted Cruz (R-TX) and Josh Hawley (R-MO) have incorrectly suggested that platforms are not protected by Section 230 because they’ve censored and moderated some right-leaning voices, many of them extremist. Section 230 offers a shield to all platforms, whether it has political leanings or not. Even House Speaker Nancy Pelosi recently told Recode’s Kara Swisher that 230 is a “gift” to tech companies that could be “in jeopardy.”
Wyden acknowledges that there’s a problem with big tech and how it’s regulated— he has introduced legislation that would overhaul privacy protections in the US, including establishing minimum privacy and cybersecurity standards, imposing criminal sentences for executives of offending companies, and creating a “do not track” system for consumers. But he believes Section 230 is still essential in making sure the internet is a level playing field, including for startups that could eventually compete with today’s behemoths.
“If you unravel 230, then you harm the opportunity for diverse voices, diverse platforms, and, particularly, the little guy to have a chance to get off the ground,” he said.
Our conversation, lightly edited for length and clarity, is below.
Section 230 is often credited as having made the internet what it is today. If that’s the case, why are there only a handful of tech companies that seem to own everything? What happened?
Let’s talk about what the whole theory was about, because I still think that the theory is fundamentally sound.
There I am, I’m Oregon’s first Democrat to get elected to the United States Senate in more than 30 years. My state has always been about timber and forestry. I say, “I’m always going to pull out all the stops to be an advocate for that sector, but I’ve got to help us get into these new areas.” And tech seemed like a natural. When I showed up in Senate, nobody knew how to use a computer except [Vermont] Sen. Pat Leahy. And I said, this is going to be exciting.
I got a chance to write, not because I was brilliant, I got a chance to write essentially the rules of the road for the internet — Section 230, the Internet Tax Freedom Act, the law that allowed for digital signatures.
What I was struck by then is that if somebody owned a website or a blog, they could be held personally liable for something posted on their site. And I said then — and it’s the heart of my concern now — if that’s the case, it will kill the little guy, the startup, the inventor, the person who is essential for a competitive marketplace. It will kill them in the crib.
That’s why Chris Cox and I got together and said what we ought to be doing is protecting that little guy, the startups, because it’s essential for innovation and competition. I share that view today.
By the way, what we saw is the big guys folded when it came to SESTA and FOSTA. And the reason why was they already got theirs, they’re big and powerful, they’re happy to pull the rungs up on everybody else.
My brief has never been for the big guy. It’s always been about the startup, it’s always been about innovation, the inventor, and competition. That is still my concern today.
There are a lot of questions about what to do about the big guys. Some of my colleagues say let’s break them up and all the rest. My own personal view is the first thing we better do is to get serious about privacy, and I’ve introduced the most far-reaching bill on that. This is about the people I was concerned about more than 20 years ago, and I think it is fair to say not only would we not have the big companies but we also would not have had a lot of the innovations that are so important.
So if we recognize some of these companies have become too big and that they’re squashing competitors, does the answer to addressing that come through Section 230? Or what’s the solution to the bigness problem?
Our country has an issue with consolidation in every industry. Technology is no different. You see it in broadband, you see it in wireless, you see it in another area I care about greatly, health care, and the effects in terms of cost. That’s why I’m tired of letting the big companies and their executives get off the hook.
I’m the one who has led the effort to say that [Facebook’s] Mark Zuckerberg, after repeated privacy violations, should be held liable, personally accountable for the multiple and repeated failures with respect to the company. That’s in my bill. Now, that doesn’t apply to 50 companies; it applies to the big ones that are generating billions of dollars in revenue and have thousands and thousands of employees.
By the way, it is what is done with the big financial services companies, so there’s a precedent. If a big financial services company lies about its financials, the executives can face personal consequences. I have proposed that for the biggest tech companies and the biggest executives. I think the question is, how do you start holding them accountable? And that’s what I’m doing.
But I think to come back to what you’re asking about — changes to Section 230 — it, in my view, unquestionably hurts the little guy more than the big guy. It is why the little guys were so concerned about the implications of FOSTA and SESTA while Facebook just sold them out. Facebook said, “Hey, we’re getting a lot of bad press, it’s going to look like we’re going to be serious about this.”
I talked to them. Take a look at the speech I gave. I basically said, “You guys are a bunch of hypocrites.’” You got yours, you’ve preached for years about how wonderful it was, and the second that you thought you could get a quick PR boost about it, you were happy to pull the rungs up. It helps you from a competitive standpoint, and you can look like you’re the good guys when in effect what you’re doing is making life harder for your future competitors.
Is there any legislation or other efforts on the horizon that could chip away more at Section 230 protections?
They’re talking about it for all different kinds of subjects — opioids, for example, and the list can go on and on and on. The issues, again, are pretty much the same thing: How do you make sure that platforms can still police their site without being held liable for missing something?
What I was trying to do with then-Congressman Cox, my friend and colleague, is to say, “Look, here, we’re going to have a shield and a sword.” The shield is for the little guys, so they don’t get killed in the crib, and the sword would give platforms the opportunity to take down things like opioid ads while providing protections for the good actors.
There’s no shortage of ideas. I’ve heard people talk about guns, opioids, and the like. I think people are going to see, as I said would be the case, apropos of SESTA and FOSTA, that most of what you’re going to do is drive the bad guys onto the dark web and there will be less exposure.
Now, of course, we also have conservatives, and some of their comments just leave my head spinning, because you’ve got conservative politicians saying that government should take control over private companies and dictate exactly how they operate, which is what they’ve been preaching against for ages.
I think there are a lot of ideas out there, and what I’m going to be trying to do is keep bringing people back to the real world.
Would you like to talk about this question whether 230 is about neutrality?
Yes, that’s actually one of the things I wanted to talk about, this neutrality issue that has come up — suggestions that Section 230 requires platforms to be neutral.
Section 230 is not about neutrality. Period. Full stop. 230 is all about letting private companies make their own decisions to leave up some content and take other content down.
You can have a liberal platform; you can have conservative platforms. And the way this is going to come about is not through government but through the marketplace, citizens making choices, people choosing to invest. This is not about neutrality. It’s never been about the republisher.
In the law that I wrote with Congressman Cox, in its language, we were creating what would be called interactive computer services, which would mean making sure more public voices were heard.
There’s a lot of nonsense out there about what this stuff is all about.
When you hear some of your conservative colleagues make certain arguments about neutrality and what 230 does and doesn’t mean, do you think they’re being disingenuous, or is it a fundamental misunderstanding in Congress about what Section 230 is?
I never want to go after people’s sincerity. I’m sure there’s always kind of the base that gets worked up, and the base hears that somehow this is being used against them.
There are some on the far right who I think are working the refs, kind of like James Harden in basketball, but for the most part, I think what happens is it comes from the base that there is some kind of monster plot against conservatives. And then conservatives say, well, then the answer is to have government programs, fairness doctrines. And nobody says, haven’t we spent the last half-century being against that stuff?
That’s why I try to make the point that this is about the marketplace. In a lot of ways, 230 ought to be really appealing to conservatives who have been arguing that they’re the libertarians and free speech advocates. I’ve already said that the marketplace — shareholders, customers — can decide whether to use and fund the platform. Government isn’t making that decision. You want to throw 230 out the window for more government? How is that consistent with conservative principles?
What’s the lobbying scene around 230 right now?
You guys are running around, and you hear lots of conservative politicians talking about how somehow laws like 230 are harming them. What we’re trying to do is to try to get the facts out.
I’ve always had a pretty good libertarian streak. I was the first person in the United States Senate to come out for marriage equality; this was back in 1995 when I was in a tough election. Many of my own supporters weren’t for it, and I said, “If you don’t like gay marriage, don’t get one.” And that has been the only thing I’ve said on the subject for a long time. So, to me, for conservatives to say that this is some big government plot when I think it’s just about the most libertarian, free speech law on the books, it strikes me as kind of odd. If you look at my record, and Sen. Rand Paul and I advanced some of these same kinds of more libertarian ideas in intelligence contexts, I’ve got some bona fide chops.
So, last question, you talk about these companies having this “sword” to police content. But sometimes, them using the sword is not convenient for their business. Yes, it’s one thing to get rid of Alex Jones, but content that upsets people or gets people riled up does do well on Facebook. Is capitalism at odds with companies acting truly responsibly when it comes to what’s on their platform?
It’s in the country’s long-term interest to have the most diverse, most expansive array of ideas out there. I think it’s in the interest of everybody, companies and everybody else, to have a wide array of interests and viewpoints out there.
Now, I think also that social media companies dropped the ball in 2016, and they’ve been doing a bang-up job since then to make every mistake they can, and so that has also generated some of the focus here. What we do in 230 is curate some content, leave some up, and give them a chance to get the slime out.
Making platforms welcoming and taking down slime is going to be in their long-term interest to keep customers. We come back to, again, diverse voices, good things, private sector, marketplace, and the proposition that if platforms move aggressively to take down slime, it will be in their long-term interest.
I’m convinced these companies can do it if they want to. The reason is they showed that with things like pornography. It was clear people were upset, and the companies moved to go after some of that and cleaned it up. If they’re serious about taking slime off their platforms, they can do it.
There’s no question in my mind that they prioritize clicks over being good actors, and that’s some of what has generated all of this heat as well. But it doesn’t speak to the fundamental proposition: If you unravel 230, then you harm the opportunity for diverse voices, diverse platforms, and, particularly, the little guy to have a chance to get off the ground.
Recode and Vox have joined forces to uncover and explain how our digital world is changing — and changing us. Subscribe to Recode podcasts to hear Kara Swisher and Peter Kafka lead the tough conversations the technology industry needs today.
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