RIP Section 230
By: David Sacks
Tags: Free Speech, Facebook, Twitter, Social Media, Election 2020

How Rudy’s Hard Drive Could Crash the Open Internet

The internet freedom we have long enjoyed owes a tremendous debt to Section 230 of the Communications Decency Act, a 1996 law which greatly aided the development of the Internet by enabling user-generated content. Suddenly, this visionary provision is gravely imperiled by a tragedy of errors committed by all three of the major actors in the Hunter Biden hard drive story — the New York Post, the social media companies Twitter and Facebook, and conservative legislators who want to take action against them.

The Post erred first by publishing a story that doesn’t come close to meeting journalistic standards. It gratuitously contains a sleazy and unwarranted invasion of Hunter Biden’s personal life. The elaborate tale of how the contents of his hard drive found its way to the reporters makes no sense, and has already been altered multiple times by the owner of the computer repair shop, and by Rudy Giuliani, since the story first broke yesterday morning. It’s more plausible that this is a case of hacking, possibly by foreign malefactors, with the stolen emails being fed to Rudy and then the Post. Furthermore, legitimate questions have been raised as to whether all the emails are even real. Even if they are, the story’s claim of a “smoking gun” is exaggerated because there’s no proof Joe Biden ever took the meeting with Burisma. (His campaign denies it.)

This October Surprise is reminiscent of the 2004 National Guard story about George W. Bush. Several weeks before the election, Dan Rather released documents purporting to show Bush had gone AWOL during his service. The blogosphere quickly debunked the story by showing the documents were fake. The bogus story ended Dan Rather’s career.

The Twittersphere was busy picking apart the Post article in a similarly efficient manner yesterday morning. Online sleuths noted the absence of metadata on the emails, for example, as well as the inconsistencies in the shop owner’s story and Rudy’s documented history of dealing with shady Russian and Ukrainian agents at the very time these mysterious hard drives were dropped off at the repair shop. Had Facebook and Twitter allowed their users to complete their work uninterrupted, the story today would likely be the reprehensible editorial judgment of the Post and new allegations of Russian collusion within the Trump campaign. Instead, both Facebook and Twitter over-reacted with heavy-handed censorship and made the story all about them and their power over free speech.

Their stated reasons for banning the article from distribution on their platforms are as sketchy as the article itself. Jack Dorsey later admitted that “our communication on this issue was not great,” and the company has walked back its justification for the censorship to focus solely on the dubious provenance of the information contained in the article. A statement read that Twitter policy “prohibits the use of our service to distribute content obtained without authorization. We don’t want to incentivize hacking by allowing Twitter to be used as distribution for possibly illegally obtained materials.” But the accounts Twitter censored didn’t post hacked material — they attempted to link to the Post’s story. And if “content obtained without authorization” is really the standard, why didn’t Twitter block links to the recent New York Times expose on Trump’s tax filings? That was sensitive personal financial information that certainly did not come to the Times with Trump’s blessing. If this standard were to be consistently applied, Twitter would have had to censor links to the Pentagon Papers. This is a policy Nixon surely would have approved of.

Facebook spokesman Andy Stone put out an even more flimsy justification. He took to Twitter to declare, “While I will intentionally not link to the New York Post, I want to be clear that this story is eligible to be fact checked by Facebook’s third-party fact checking partners. In the meantime we are reducing its distribution on our platform.” This is about as much of an official statement on the matter as Facebook provided, and it begs the question: aren’t the most reliable “third-party fact-checkers” the very users of the platform that Facebook won’t let see this content? Stone apparently doesn’t think they’re up to the job, a job they were in the process of doing before Facebook intervened.

Most commentators quickly brushed aside Twitter and Facebook’s justifications and saw their intervention for what it was: an attempt to sit in judgement of another publication’s editorial standards. If those standards don’t cut it, social media would cut off their traffic. Effectively, social media has decided to edit the editors. That is a breathtaking assertion of power over the entire media industry.

As journalist Glenn Greenwald tweeted: “The NY Post story was a minor, largely redundant report even if the docs are real. The extreme act of censorship by tech giants to suppress it, cheered on by journalists, is a major story of historic proportions. They always had this undemocratic power; today they used it.”

In reference to Andy Stone, Greenwald continued: “If I were Facebook, and I wanted to announce the systemic suppression of a questionable news story that reflected poorly on the Democratic presidential nominee, I probably wouldn’t have a life-long Democratic Party operative make the announcement on my behalf.”

Because of this series of blunders, conservatives now have a legitimate issue that the article itself would not have provided them. Paraphrasing Marx (who wrote that “power is control over the means of production”), Arthur Schlesinger once said that power is control over the means of communication. In his day, that meant the elite media, like the three TV news networks and the New York Times. Today, the traditional media have been disintermediated by Facebook and Twitter so now we get our news via their algorithms. And those algorithms are controlled, with unilateral power, by Zuckerberg and Dorsey. This accumulation of power in so few hands is surely at odds with our democratic system.

Until now, we’ve tolerated it because these companies said they would be neutral speech platforms. They would not put their thumb on the scale in favor of one side or another, in an attempt to influence public opinion or electoral outcomes. But now we increasingly see them taking sides on a variety of topics. Right now, YouTube is pulling videos that contradict the World Health Organization’s views on Covid, apparently without irony given that WHO has contradicted itself multiple times during the pandemic. Tech billionaires no longer seem satisfied with the power their private philanthropy gives them; they now appear to be using their platforms to favor their pet political and social causes. If this is not the case, they have failed to adequately reassure the public about it.

Hence the cries from conservatives to repeal or rein in Section 230. Trump’s Justice Department already proposed this last month, Republican Senators Ted Cruz and Josh Hawley have been beating the drums for it, and Justice Clarence Thomas filed a brief laying out a legal roadmap to restrict 230 just this Tuesday. The fiasco over the Post story only adds fuel to the fire.

But here’s the final tragedy: conservatives who want freer speech will not get it by repealing Section 230. In fact, repeal will produce the opposite. If Internet platforms are required to remove any potentially problematic content, corporate risk-aversion will lead them to over-restrict speech to avoid any potential liability. Moreover, when these companies hire hundreds of millennial staffers to review content and make judgment calls about what is objectionable, who do conservatives think is more likely to get censored? Remember that the purpose of Section 230 is to protect internet platforms from lawsuits. Does anyone believe that a torrent of new lawsuits is going to make the internet freer than it is today?

Conservatives have a point that an unelected few shouldn’t determine what speech is legitimate for all of us. But rather than a draconian legislative change, the best solution would be self-correction by the social media companies. Surely, they must now realize that their desire to protect the Biden campaign from what they perceived as an unfair story played into their knee-jerk reaction to censor. Now would be the time to take steps to reduce bias and recommit to speech neutrality. If they’re unwilling to do this (and Dorsey’s recent criticism of Coinbase’s decision to become an apolitical workplace does not inspire hope), they may deserve the disaster they seem to be courting. As Senator Tom Cotton warned, “if you want to act like publishers, we will treat you like publishers.” Translation: say goodbye to 230 protection.

On Capitol Hill, an odd coalition of Republicans and Democrats is now coalescing to overturn Section 230, in keeping with the truism that all the worst ideas in Washington are bipartisan. If politics makes for strange bedfellows, Zuckerberg and Dorsey have no one to blame but themselves for the blunders that keep driving their opponents into each other’s arms.