In the early days of the internet, few developers openly explored the darker reality of total interconnectivity. Even the visionaries behind those first, famous lines of code probably didn’t envision global conversations dominated by 140 characters or less. Indeed, the internet of 2020 is quite different from the internet that created so much legislative buzz in the mid-1990s. So why does Washington insist upon forcing Big Tech into an obsolete regulatory framework?
Debates over Supreme Court vacancies and “skinny” relief packages may dominate media coverage of Capitol Hill, but look beneath the surface, and you’ll find plenty of bipartisan discussion over evergreen issues. Take, for example, Big Tech’s ever-increasing role in the provision and consumption of information and the terrible consequences of the industry’s tendency to scuttle objective content moderation in favor of biased preference.
Very few lawmakers would deny that the key to rebalancing the scales lies in reforming Section 230 of the Communications Decency Act, but fewer still can agree on what that reform should look like. While they bicker, private corporations remain busy deciding what information people should be allowed to consume.
Big Tech’s power grab has caused obvious tension between our predilection for a light-touch approach to regulating business and the emergent need to preserve the integrity of public discourse. Congress approved Section 230 in 1996 not as a gospel guide to content moderation standards, but as a set of guardrails for startups to use as a shield against frivolous lawsuits. The original drafters understood that the internet was growing too quickly to respond to strict regulatory oversight, so they embraced ambiguous language that would allow platforms the freedom to limit user exposure to “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” content without having to fear waves of content-based litigation.
The internet has since grown up, but Section 230’s standards still languish in 1996. The social chaos that pervades today’s online world is no longer compatible with a standard that unintentionally insulates content moderators from accountability for censoring speech they “personally object” to. The only way to break this cycle is to update Section 230’s standards to reflect 2020’s realities.
It’s important to remember that Section 230 is not an unassailable pillar supporting free enterprise. It is a statutory construct. Like many statutes before it, it needs an update that reflects both an understanding of the internet and the volatile nature of the national discourse. The Online Freedom and Viewpoint Diversity Act, which Sens. Lindsey Graham, Roger Wicker, and I introduced this month, updates Section 230’s standards to act as a backstop against Silicon Valley’s worst, most unfair instincts. Once passed, it will eliminate the current statute’s infuriatingly ambiguous “otherwise objectionable” catch-all and instead provide examples of what that objectionable content might look like: for example, content that promotes terrorism or self-harm, or that is unlawful.
For years now, Big Tech’s biggest players have enjoyed an open season on dissent; but Congress never intended for private companies to hide behind a statutory shield, while their employees manipulate millions of consumers into adopting a regressive view of free expression. Only the most foolish of sycophants would suggest Congress must stand still in the face of such an abuse of sociopolitical power.
Similarly, it would be folly to panic and wipe Section 230 off the books altogether, as many have suggested; doing so would open the floodgates to rampant litigation while doing nothing to address the underlying problem inviting those inevitable lawsuits.
The framework is in place, the procedure for updating it already learned by rote. If Congress refuses to update these standards in a way that proves we understand the internet we have, and the potential of what’s to come, we do so at the peril of free thought.
Marsha Blackburn, Tennessee’s junior U.S. senator, is co-chair of the Senate Judiciary Committee’s Tech Task Force and a member of the Senate Committee on Commerce, Science & Transportation.
