Given the tidal wave of support for addressing the obvious dysfunction in the social media arena, it is surprising an effective tactical plan has not emerged. The approaches currently in play are:
Antitrust. The argument being that certain social media businesses are engaged in monopolistic behavior. The first step in identifying a monopoly is to define the market that is being monopolized. In this case if the market is defined as ad supported media the government loses. Even though the Facebooks, Googles etc. seem enormous, their share of the ad supported market is not even close to monopolistic levels. Also as many legal scholars have pointed out if the government tries to define the market too narrowly it will exclude the very competitors the monopolists are allegedly preying upon. The probability is quite low that this long and arduous path will result in any meaningful constraints on the target companies.
1st Amendment. “Congress shall make no law…abridging the freedom of speech…” It is hard to imagine how any court could stretch this constitutional prohibition to encompass a private entity’s contractual terms and conditions. Anything is possible but it looks like a sucker’s bet to this ex gambler.
A private entity has enormous latitude to disseminate information without government interference. That latitude does have boundaries; it is not absolute. There are statutes that prohibit incitement, fraud, perjury, defamation, etc. As a practical matter the courts try to establish these boundaries via individual cases with unique fact patterns and precedents (stare decisis). The boundaries are in constant flux which provides trial lawyers and con law experts a lucrative, steady revenue stream in perpetuity.
By 1996 the internet was fundamentally transforming the commercial world and the government (predictably) was trying to to restrict and regulate this burgeoning industry . As a result the Communications Decency Act (CDA) was passed largely as an anti-obscenity tool in the long and quixotic quest to eradicate pornography permanently.
At the last minute a legislative copy and paste was executed using something called Section 230 which was lifted from the Telecommunications Act of 1934. This occurred because a unique coalition of aging drum circle lefties, tech nerds, libertarians and evil executives came together. Surprisingly, this riff raff managed to build an extraordinary consensus in favor of adopting Sec. 230 as an essential safeguard against something.
As a practical matter Sec 230 split the internet world into two categories. Publishers and common carriers. A common carrier would be a neutral platform (e.g. the phone company). Meaning if two people are having a conversation that defames someone the injured party can’t sue the phone company. They are a neutral party simply transporting a signal from Point A to Point B without any knowledge of or involvement in the contents of the message itself. (Let’s skip the NSA for the moment).
A publisher is an entity providing a platform for content creators with the power to make proactive decisions about the content. Things like how it’s curated, displayed, when, where and in what format it is displayed, how it’s edited and/or paraphrased and whether to directly engage with the content and/or content creator ( Facebook is basically a massive Letter to the Editor machine).
Initially there was a unanimous and even fervent belief that putting the internet platforms in the common carrier bucket was essential for the internet to achieve the robust growth that would improve every aspect of human existence and make lots of money (the internet had officially opened to commercial traffic in 1992). There was an understanding among the small group of visionaries extant at the time that the path would be fraught with incalculable and unforeseeable challenges as we moved forward. Yet, because the internet was an existential organism we must soldier on.
A last fast forward; to today. There are still unknowns (both known and unknown) and stuff we do know. Given that knowledge, it’s an appropriate time to take another look at Sec 230. There are really only two applicable questions:
The first is does the internet in general and social media specifically need legal immunity from the consequences of its actions in order to continue to thrive?
The second question is: in the almost 25 years since the Sec 230 immunity protections were added to the CDA has the observed behavior of the internet platforms been that of a publisher or a common carrier?
The answers are no and publisher.
The answers provide a perfect opportunity for a true public/private partnership
First, the public part. Eliminate Section 230. Congress you’re up.
Second, the private part. Social media companies without immunity will inherently unleash the legal community. The user agreements alone are bubbling cesspools of fraudulent representations. (e.g. “community standards”–there is no identifiable community hence no definable standards). Any competent attorney could find an infinite amount of such gibberish in the user agreements. Forget the 1st Amendment and/or antitrust. Just call it fraud and get on with it.
In effect, this is an ecological problem. Section 230 artificially created an environment that is so safe that the social media companies became apex predators even though natural predators exist (plaintiffs, lawyers) lurking in the wild. Eliminate Section 230 and let nature take its course. Problem solved.