Fixing Section 230
Recently the U.S. Supreme Court heard two cases related to Big Tech and the extent of its liability for content posted by ISIS on You Tube and Twitter. Over the coming months and years, we can expect other cases challenging Big Tech’s content judgments and decisions to work their way through the judicial system, with some landing on the docket of the High Court. Given the paradoxical calls for increased content moderation and the end to partisan censorship, clarity on the roles and responsibilities of Big Tech in hosting what has become the digital public square will inevitably need to be resolved. Whether the courts or the legislature end the debate remains to be seen. What is clear is that Section 230 of the Communications Decency Act of 1996, which has spawned the confusion, needs to be fixed if we are to have social media platforms that positively contribute to the growth of the American democracy.
Section 230 was developed in response to two lawsuits against online discussion platforms in the early 1990s that raised the question of whether these service providers should be treated as publishers or distributors of third party content. If the providers were to be treated as publishers, they would have editorial responsibility, and thus, legal liability for the content posted by third parties. The threat of endless lawsuits posed by this risk could have stopped the development of the budding internet in its tracks. At the time, the internet was a new technology that held boundless possibilities for connecting people and accelerating a new and promising phenomenon that some called mass collaboration. However, Congress was concerned these possibilities might never be realized if the service providers were drowned in a sea of lawsuits. To eliminate this threat, Section 230 treats the internet providers as distributors who are not liable for the content they host on their platforms.
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Section 230 has two relevant parts. The first part grants providers immunity from liability for information posted by third party users. The second part conveys protection from civil liability for service providers who remove or moderate third-party content they regard as “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Section 230 is problematic because it’s become a version of the old adage, “Heads I win; tails you lose.” On the one hand, Section 230 declares that internet providers are not publishers and cannot be expected to edit content posted by others on their platforms. On the other hand, if the providers choose to act as editors, they have the right to do so and their judgments regarding what is objectionable cannot be challenged. Thus, the effect of the law is that service providers can act either as neutral parties or censors at their own discretion. Unwittingly, Section 230 has given Big Tech power that, in the past, has been exercised by monarchs. But instead of “Off with their heads,” it’s “Off with their voices.” Until now no entity in the United States has been given this fashion of divine right, and if this monarchical power is not curbed, the continuance of the American democratic experiment could be seriously jeopardized.
How We Got Here
When Section 230 was passed into law in 1996, the internet was in its infancy. Google, You Tube, Facebook, Twitter, and Instagram were years away from their entrées into the digital world. The top five service providers at the time were AOL, Webcrawler, Netscape, Yahoo, and Infoseek. Only Yahoo and AOL are still relevant today.
In the late 1990’s, the conventional thinking was that Yahoo—an acronym for Yet Another Hierarchically Organized Oracle—was going to be the service provider that would break out from the crowded pack because they seemed to be the best at mastering internet search. As the internet was rapidly growing with additions of massive stocks of information, the expanding volume of content would be worthless unless users had a way to quickly locate the information they were seeking. Yahoo’s approach to solving this problem was to organize the myriad of Web pages into a practical catalogue by assembling a hoard of experts to review and rank the pages. Like a library cataloguing system, content was hierarchically organized by recognized experts. Yahoo appeared to be the odds-on favorite to dominate the budding search market because their cataloging oracles were better than those of their competitors.
However, cataloging takes time, and by 1998 the popularity of the internet had begun to take off. The mammoth effort to keep up with the rapidly growing number of Web pages was becoming a challenge for even the best experts. Two innovative entrepreneurs who had met as students at Stanford University, Sergey Brin and Larry Page, came up with the idea for a radically different way to catalog internet content that would not require the use of editors. They created an algorithm that would use the collective intelligence of the users to rank the pages. This was the game-changing innovation that allowed Google to easily supplant Yahoo as the search engine of choice. The leveraging of collective intelligence would define Google in its early years as it became an oft-cited practical model of the transformative power of mass collaboration. Google’s early success was compelling proof that peer-to-peer networks leveraging the collective intelligence of the many produced far superior results to top-down hierarchies amplifying the individual intelligence of an elite few oracles.
In its first decade from 1996 to 2006, Section 230 appeared to be a brilliant insight on the part of Congress. In addition to Google’s meteoric growth, Amazon and Wikipedia would upend their industries by building mass collaboration platforms that used collective intelligence to rank books and create articles. Wikipedia, in particular, established a clear policy of neutral point of view to foster comprehensive articles that effectively blended different perspectives. Throughout the first decade of the twenty-first century, these three platforms became integral parts of our everyday lives, demonstrating the incredible power of collective intelligence for producing better knowledge and superior results. They were also providing compelling proof that nobody is smarter than everybody and reinforced the possibility that, if we could continue to migrate mass collaboration into broader social arenas, we could create a better and smarter world.
However, in 2006 and 2007, four new products would dramatically alter the arc of the evolution of the internet. In 2006, Twitter was founded, Facebook became accessible to the general public, and You Tube—founded a year earlier—was purchased by Google. In 2007, the digital landscape was radically disrupted by the introduction of the first smart phone, the Apple iPhone, with Google introducing its Android phone a year later.
The smart phone is arguably the most transformative invention in the history of human civilization because it expanded internet connectivity in two significant ways. First, connectivity became available to everyone, not just to those who could afford a computer. With the smart phone’s relatively lower price point, the masses could now be practically connected. According to Statista, in 2023, the number of smartphone users in the world is 6.92 billion, meaning 86.34% of the world’s population owns a smartphone. In addition, because you no longer need to be sitting at a computer to access the internet, connectivity is now possible anytime, anywhere.
At first blush, we might be tempted to see these developments as accelerators of new opportunities for mass collaboration, as was the intent of Section 230. But that’s not what happened. In designing their algorithms, Facebook and Twitter did not use collective intelligence as the foundation to present information to their users. Rather than offering a cross section of viewpoints and ideas, Facebook and Twitter used their algorithms to present people with information that reinforced their points of view. Instead of facilitating a robust dialogue where people could blend the strengths of different perspectives, the two social media sites organized their users into fractious tribes where they would likely encounter like-minded people. Over time, Google—in both its search engine and You Tube—would modify its algorithms to mirror Facebook and Twitter. With the abandonment of collective intelligence, the elite social media staffs rather than the users would decide what was important, and unfortunately, what was to be censored.
Instead of promoting the free flow of thoughts and ideas, Section 230 has enabled the authoritarian control of information as Big Tech monarchs have behaved more like overbearing gatekeepers than neutral distributors. Google, Facebook, Twitter, and Apple have each become massive monopolies who use their power to advance self-interested agendas and extinguish the voices of those who see things differently. Instead of bringing out the best in us, they have brought out the worst in us. New opportunities for mass collaboration have been overtaken by new ways to bully, demonize and cancel those who don’t agree with the Big Tech monarchs. These monopolies show no interest in promoting mass collaboration because they have elected to align with one of the tribes and weaponize their extensive power against the remaining tribes. Perhaps the greatest disappointment in this devolution of the digital world is Google.
Abandoning Collective Intelligence
It’s is interesting that Google has played a prominent role in both the buildup and the battering of the promise of mass collaboration. In 1998, Google gave the world its first mainstream practical application of collective intelligence. Despite being a late entrant into an already crowded market, Google became the dominant search engine because its search results were extraordinarily better than any of its competitors. By creating an algorithm where all user preferences were valued equally, no user’s voice was censored and the sheer volume of links guaranteed the diversity of perspectives necessary for harvesting collective intelligence, Google provided the world with a powerful demonstration for how we could create a higher form of human intelligence. In the first decade of our new century, it appeared that Google would be at the forefront of creating a better world. However, in the second decade, Google would make a strategic shift as it abandoned its defining innovation and, ironically, morphed into the search model it displaced by redesigning its algorithms to reflect the preferences of an emergent group of like-minded editorial experts. Google discarded the collective intelligence of its user network to devolve into yet another hierarchically organized oracle. As Lord Acton predicted, Google had succumbed to the temptation of absolute power.
Perhaps nowhere was this more evident than Google’s handling of information related to Covid-19. Image the immense contribution Google and its affiliate You Tube could have made if advanced collective intelligence tools were applied to integrate the divergent thinking of government scientists, pharmaceutical researchers, epidemiologists, virologists, front line doctors, biologists, and seasoned actuaries. The convergence of their collective intelligence could have accelerated our understanding of a complex pathogen and could have opened up new opportunities for innovation in both treatment and prevention of the novel virus. Advanced collective intelligence tools might have transformed how scientists do science much the way they initially transformed how to best search the Internet.
Instead, Google’s oracles behaved like medieval Knights Templar enforcing an inquisition upon those who dared challenge the monarchical edicts of public health bureaucrats. Instead of providing a collaboration platform where frontline doctors—who were closest to the patients—could work with scientists and medical researchers in a peer-to-peer network to rapidly discover what was working and not working in real time, frontline doctors were treated like commoners who need only follow regal orders. Those doctors who did not comply were silenced. Computer programmers and software developers with no medical training censored highly respected and credentialed physicians, epidemiologists, immunologists, and evolutionary biologists by removing their You Tube videos or demonetizing their podcasts, often while the oracles at You Tube were behaving like plunderers hoarding all the related advertising revenue for themselves. It has been sad to see how one of the early proponents of the mantra that information should be free has morphed into one of the most onerous censors of free speech.
By abandoning collective intelligence and embracing the censorious behavior of the other internet monopolies that make up the Big Four, Google became a major player in an oligarchy that attempted to control the information that’s allowed to be discussed in the digital public square. Thanks to the emergence of alternative media, such as Substack, Rumble, and the proliferation of independent podcasts dedicated to the principles of free speech, the Big Four’s attempt to control the public square has been thwarted. And with Elon Musk’s purchase of Twitter, the Big Four’s censorious quest has been dealt a significant blow because not only have they been reduced by one, but the release of the Twitter Files has given the citizens in the public square an inside look into how these modern day monarchs exercised what they considered to be their divine right. The ultimate irony of this whole escapade is that, under the pretense of thwarting misinformation, the Big Tech monopolies have actually been the greatest purveyors of false information and propaganda. This is especially true in how they handled their Covid censorship campaign. We now know that most of the censored information has turned out to be true and most of the pandemic propaganda pushed by the Big Tech monarchs has been proven false. And the root cause of this topsy turvy world is the unwitting coercive power and the misplaced trust that Section 230 bestowed upon the internet service providers.
Fixing Section 230
It’s time to fix Section 230 and end the tyrannical reign of the Big Tech monarchs. It’s time to end the modern day inquisition and the plundering of demonetized content providers who think differently—and very often correctly. It’s time to restore the original intent of Congress and reopen the boundless possibilities of a free and uncensored internet to promote the promise of mass collaboration.
Rather than the carte blanche approach imbedded in the current iteration of Section 230, any revision to this law should be based on the following behavioral principles:
· When internet service providers behave as distributors and do not engage in content moderation, except for content that is explicitly illegal, they are granted immunity from liability for information posted by third party users. This means there is neither human nor algorithmic activity that selectively advances or suppresses third party content nor any editorial comment on the third party content. Algorithms that use the collective intelligence of the users to present actual user rankings or trends is consistent with the behavior of a distributor.
· When internet service providers engage in any form of content moderation or selective advancement or suppression of third party content, except for content that is explicitly illegal, they are behaving as publishers and/or editors and are subject to the normal standards of legal liability that apply to all other publishers and editors.
· In all instances, third parties who post on the platforms of internet service providers are behaving as publishers and editors and are subject to the normal standards of legal liability that apply to all other publishers and editors.
If these three principles are used to fix Section 230 and are codified into law, the first amendment rights of both the users and the internet service providers will be balanced in a way that is consistent with the ethos of free speech, which is the cornerstone of a free and open democratic society. With an end to the divine rights granted under the current version of Section 230, we can once again resurrect the boundless possibilities for mass collaboration to create higher forms of intelligence and a more human society.
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