De-Platforming & Big Tech Censorship
Social media companies today are the equivalent of the public squares of yesteryear and need to be treated as such. I can already sense the “government can’t dictate what a private company allows” arguments heading my way, but the idea of technological public forums predates the internet.
The common carrier statutes – 47 USC Part 1 if you’re inclined to look them up – were originally created to prevent telecoms from censoring anyone. They were later updated to prevent ISP’s from censoring content. Those laws already give the federal government the tools to prevent what we euphemistically call “Big Tech” from censoring and de-platforming anyone based on political views.
Much of the focus has been incorrectly on “repealing section 230.” That idiocy refers to 47 USC 230, which ensures domains cannot be sued for the content they do not create. The point these people, including the outgoing President and Senators such as Josh Hawley, are making when they say that is they want to sue social media companies for removing or flagging the content of which those companies disapprove. That won’t solve the problem. It is more likely to make it worse, since without those liability protections social media companies cannot function. They would be liable to be sued not only for content they removed, but content they allowed. It would mean every single opinion posted would be subject to legal action, driving the companies into bankruptcy in short order.
Additionally, 47 USC 230 has absolutely no effect on preventing a web-hosting company from de-platforming an entire service, such as happened to Parler this week and Gab last year.
Where people should focus first is 47 USC 214, which regulates when and how a carrier can deny service to another entity. In this case, the carrier is a web-hosting company (much the same way AT&T once provided access to telecom lines) and the entity is the social media company. This section was the one used by Sprint to force AT&T to allow them access, effectively ending Ma Bell’s monopoly over telephone service.
As for 47 USC 230, paragraph d defines the obligations of an “access software provider,” but currently limits those obligations to warning about explicit content. By the way, the same statute defines an “access software provider” as “a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A)filter, screen, allow, or disallow content;
(B)pick, choose, analyze, or digest content; or
(C)transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.”
Sounds like a social media company, doesn’t it?
One simple line, say, “access software providers shall be subject to Section 202 of this Code” put into Paragraph D will prevent willy-nilly censorship and de-platforming of accounts. For those concerned about how that would be fairly enforced, the same enforcement rules that have been in existence since 1932 as outlined in 47 USC 204 and 208 will work. Remember that bit about Sprint using this section of the US Code to force AT&T to allow them access? The same works on a smaller scale. What’s more, the social media companies would be expressly forbidden from preventing access by 47 USC 202. The pertinent clause is,
It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.47 USC 202 Paragraph A
In other words, the same thing that prevents Verizon from cutting off your phone service because you texted a friend “biden sucks” would prevent Twitter from restricting your access for posting “biden sucks.” That’s a win for everyone. Well, everyone except those folks who don’t want you to exercise your freedom of speech.