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Section 230 of the Communications Decency Act is endlessly controversial but tremendously important. Originally passed in 1996, the goal is to protect various online websites and forums from malicious activities.

More specifically, it sets a precedent that an “interactive computer service” cannot be deemed the publisher or speaker of third-party content on its platform (47 U.S.C. § 230). In short, it means that if a user publishes something illegal, let’s say on Facebook, then authorities cannot hold the company responsible. There are exceptions, however, such as when it comes to explicit materials, copyright violations, and federal law violations.

In recent years, due to political events, media falsehoods, and propagated lies, in many sectors, the law has come under fire. Some have also proposed that it offers big tech companies — like Facebook and Google and other social media platforms — unfair legal protections and absolves them of certain responsibilities. In 2020, President Donald Trump infamously targeted Section 230 and various social media giants, alleging that the law’s overreach needed to be reeled in. The current President, Joe Biden, wants to revoke Section 230 completely.

To understand why it is so controversial, along with what the law may be doing to offer unfair legal protections, we need to dig a little further.

What Does Section 230 Have to Do With Big Tech?

Social media platforms have evolved to be anti-competitive, and in some ways collusive, in undermining business partners, like Amazon’s third-party sellers or competing businesses. An excellent example is an ongoing battle between tech companies and Parler. Regardless of your political affiliation, it’s obvious that big tech has a lot of power over what happens on the internet and how conversations play out.

To make matters worse, whistleblowers have helped to expose political bias within the major big tech companies, which can infringe upon free speech and first amendment rights.

So, what does all of this have to do with Section 230? Well, that’s complicated. Because of how broad Section 230’s language is, it is often misinterpreted and may even offer too many protections in some cases, while not enough in others.

The law expressly allows tech companies like Twitter, Facebook, YouTube (Google), and others to remove content they deem harmful to the public. However, some allege that the companies are removing opposing viewpoints or competitive content, all under the guise of Section 230.

Does Section 230 Enable Social Media Censorship?

Taking the idea of collusion and censorship a bit further, some believe that these tech companies are leveraging laws, like Section 230, to suppress the competition and censor various viewpoints and conversations on their platforms that may be inconvenient to them.

For example, one whistleblower claims that after Facebook acquired Instagram, it slowed down the social network’s “natural growth to benefit Facebook proper.” While that would be considered more of an internal monopolistic problem, it’s certainly still concerning.

It comes back to a question of trust. Just because these companies can censor certain types of content, language, or discussion, doesn’t necessarily mean they should. If and when they do, how do we know they’re actually suppressing something harmful? Where is the transparency to see whether or not they are holding back the competition, no matter how small?

Most critically, how do we protect these companies without providing them with too much power over our digital freedoms?

Can Regulatory Power Promote Competition?

Many companies preach and discuss the concept of human-centered design, which involves empathy for the end user during development. So, these companies understand the need for empathy, and the importance of their audience and users, including those that may be involved with competing properties. It makes one wonder why this is even a problem?

Customer happiness and user satisfaction are two of the most important metrics that any business can collect and utilize in today’s market. Wouldn’t that alone breed competition and offer room for smaller firms and organizations to grow?

The problem is that many of the tech giants are dangerously close to monopolies if they’re not considered one already. Regulations like Section 230, make it possible and legal for them to suppress the competition in rather ingenious ways.

What’s more, each company handles different aspects of the internet. Google utilizes search and ad-supported content. Facebook leverages organic social media content and exclusive platform ads. Amazon offers a host of services, including web services, on-platform advertisements, media advertisements, and e-commerce support.

Amending rules and regulations to address each of their services and practices would be remarkably difficult.

Antitrust laws do exist, but many of them were created long before the internet became what it is today, and they do not touch upon modern aspects, practices, or problems. The same is true for Section 230.

What Does Big Tech Say?

Unsurprisingly, affected companies like Facebook propose a more nuanced approach to regulation that treats them as a cross between telecommunications providers and news or media outlets. Zuckerberg, for example, argues that regulation of harmful content is necessary, but the right “framework” should be chosen.

“Right now there are two frameworks that I think people have for existing industries; there’s like newspapers and existing media, and then there’s the telco-type model, which is ‘the data just flows through you,’ but you’re not going to hold a telco responsible if someone says something harmful on a phone line.”

Zuckerberg goes on to say that Facebook should be “somewhere in between.”

Where Do We Go From Here?

It’s complicated. Very, very complicated. But there is room to improve, and there are answers, no matter how difficult these problems are to address. Anyone who has seen the uncanny ability for these platforms to triangulate on people’s pet issues and personalities should recognize the power they have over society.

Section 230, and regulations like it, have been amended before and will be amended again, especially since President Biden has voiced his intentions to adjust them. His current idea, to get rid of 230, probably isn’t the best solution either, as it would eliminate protections for a swath of online companies and platforms that host user-generated content.

The hope is that the language in the law can be modified to reduce anti-competitive violations without throwing it away entirely.

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