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Why Dan Crenshaw’s Section 230 Bill Won’t Stop Big Tech Censorship

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Image Credit Marco Verch

If Crenshaw’s bill represents Republican leadership’s plan for taking on Big Tech, then it is wholly inadequate.

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Roughly three years into the raging debate about social media, Rep. Dan Crenshaw, R-Texas, has entered the chat.

After hosting a podcast last year emphasizing free-market solutions to perceived tech bias, where his guest from the R Street Institute casually analogized “amending Sec. 230” to “amending the United States Constitution,” Crenshaw announced this week that he will introduce his own Section 230 reform bill. The legislation comes in the wake of both feuding with Rep. Marjorie Taylor Greene, R-Ga., and in response to her subsequent permanent ban from Twitter.

“And @realmajoriegreene,” the congressman said on Instagram on Sunday, “instead of playing the victim about censorship maybe use your position as a LEGISLATOR to help pass LEGISLATION against censorship. Luckily,” he went on, “I’ve already done all the hard work for you and drafted a bill that would change Section 230 to prohibit political censorship.” 

What Is Section 230, Again?

Section 230 provides sweeping legal immunity from third-party content to internet platforms, among other beneficiaries. Drafted at the inception of the internet age, when the world’s biggest tech companies were mere glimmers in their founders’ eyes rather than the globe-consuming monstrosities they are now, Section 230 was essentially created to solve the moderator’s dilemma: how do you incentivize companies to remove the smutty, harassing, and tawdry content that no one wants to see without making them liable?

Or, in the words of the law’s findings, how do you prevent the internet from devolving into a cesspool of vulgarity and instead become “a forum for a true diversity of political discourse . . . and myriad avenues for intellectual activity”?

The answer was to create a liability shield that makes clear that interactive computer services are not responsible for what their users post, and that encourages them to remove offensive content “in good faith” without being subject to liability. The issue, of course, is that we now have huge speech platforms creating vague terms of service and ideologically controlling everything from information access to political speech to avenues of commerce. The concept of Section 230’s liability shield being limited only to the removal of “obscene” or “excessively violent” content –- and in good faith, no less –- is actually laughable. 

While Section 230 doesn’t give companies the “right” to censor, the law privileges their ability to wield their speech powers without the same consequences that would befall a newspaper or a movie studio. One decidedly pro-tech law professor has called Section 230 an “implicit financial subsidy” to the tech giants. Moreover, in the decades since its passage, Section 230 has been judicially contorted and stretched far beyond what many believe was its intended, narrow purpose.

This is why Section 230 is a central element of many Republican tech reform efforts. If the biggest tech titans are benefiting in outsized ways from a policy the government created, the government should be able to tweak the criteria to which that subsidy is beholden. Section 230 reform bills have proliferated in both the House and Senate, among both Democrats and Republicans.

But there are challenges. Part of Section 230’s initial brilliance was in its simplicity. Layering on criteria, attempting to wiggle through changes for the largest tech platforms while leaving smaller ones and comments sections alone, and applying a pure First Amendment standard to moderation practices can all boomerang toward a counterproductive or even ineffective end. Unlike what Big Tech’s paid policy proxies will tell you, threading the needle can be done, but it requires a thoughtful approach.

Vote For Us, We Won’t Fix Major Problems

All of this brings us to Crenshaw’s bill, which is not only interesting as the latest addition to the 230 legislative canon, but also because according to the document file path posted by Crenshaw, it apparently was drafted in full or in part by the House Energy and Commerce Committee.

The Energy and Commerce Committee has jurisdiction over Section 230 issues, and Republicans on the committee have been tasked by House Minority Leader Kevin McCarthy to come up with a series of solutions related to Big Tech. These proposals seemingly represent the Republican platform for taking on Big Tech should Republicans take back the House majority.

So with that in mind, the bill doesn’t simply represent a pivot in Crenshaw’s views or his response to Twitter banning a sitting member of the House (and his colleague), it may very well represent a component of the Republican leadership-driven Big Tech platform. If that’s the case, Houston, then we have a big problem, and not in the least because Crenshaw’s singular claim about the bill, that it would “prohibit political censorship,” doesn’t stand up to scrutiny.

Crenshaw’s Bill Would Not Prevent Censorship

Digging into the text of the legislation reveals it to be a “discussion draft.” That is the early draft of a bill that’s not yet ready for introduction (or cosponsorship by other members, for that matter), but is being circulated for comments and changes. That’s good because it’s in need of some tweaks.

The bill’s key section eliminates Section 230’s exception for platforms that discriminate on the basis of “racial, sexual, political affiliation, or ethnic grounds.” While good in the sense that discriminatory platforms would no longer have their highly prized blanket third-party immunity, the platforms would also no longer have an incentive to remove things like legal pornography (which also includes virtual child pornography). This undermines the central purpose of Section 230, which was to clean up the internet (read: take down porn). 

In its quest to limit censorship while maneuvering around the First Amendment rights of the platforms, Crenshaw’s bill falls into a common trap: over-reliance on the terms of service. Under Section 201 of the bill, political censorship would still be allowed if the policies are disclosed. That is, if the platforms disclose in advance their criteria for banning users and content (which no one reads), they have full license to do it.

But this runs into a very obvious problem. As long as the terms are written vaguely enough, phrased in such a way as to not be “based on racial, sexual, political affiliation, or ethnic grounds,” then the platforms are in the clear. And the platforms are masterful at this kind of wordplay and terms tweaking.

When Twitter banned the circulation of a New York Post story critical of Hunter Biden in the runup to the 2020 election, the platform justified it with an appeal to a vaguely worded and unevenly applied term of service about so-called “hacked materials.” It later clarified the policy after an outcry, but still refused to unlock The New York Post’s Twitter account until it deleted tweets about the story, which, under Twitter’s new terms of service, the account no longer violated. (In the end, Twitter blinked.)

Ban first, justify in the terms later. Or, make the terms vague enough to encompass all manner of mercurial bans. This is the game and no one is better at playing it than Silicon Valley censors.

In other words, Greene would still be banned under this legislation. Twitter would just say, as it did in her current case, that she violated some term of service related to Covid-19 misinformation (notably not covered by the Crenshaw bill’s exclusions) or represented in some ill-defined term of service about “threats to democracy” or whatever the tech giants are calling free speech these days. 

No Recourse for the Silenced

If, under this bill, Greene thought her rights were being violated, she’d also have no recourse. The bill relies on the Federal Trade Commission for enforcement – a commission currently dominated by Democrats. This is a similar enforcement mechanism to those written into other legislation offered by Sen. Josh Hawley, R-Mo., and decried by House members like Rep. Jim Jordan, R-Ohio. 

The bill does allow state attorneys general to commence lawsuits – so, Greene could possibly convince Georgia’s attorney general to sue on her behalf – but not so fast. The bill allows the FTC (again, controlled by Democrats) to “intervene” in (and, presumably, to veto) such lawsuits.

Maybe a state could act and save Greene, you say? Not under Crenshaw’s bill, which, upon passage, would preempt all state social media regulation, such as the bills passed recently in Texas and Florida.

What Is the Republican Plan for Big Tech?

Crenshaw’s bill is hardly the only Section 230 bill in Congress that fails to do what it intends. Sometimes that’s a feature, not a bug. The legislative process is iterative. Bills are introduced, critiqued, reshaped, and reformed into better offerings.

But Crenshaw’s bill is notable given its obvious link to the Energy and Commerce Committee, which has been appointed to lead Republicans on a critical aspect of this issue. If Republicans walk into a majority in 2023 wielding this bill, without substantial changes, the tech companies will likely embrace it while snickering all the way to the bank.

The myopic focus on Section 230 alone, however, obscures the comprehensive nature of the tech debate, and the need for legislative offerings to reflect that. Section 230 is part of the reform effort, though the difficulty of constructing an adequate reform should render it only a small part. (If House Republicans are looking for a solid Sec. 230 reform bill, Rep. Greg Steube, R-Fla., has an excellent one.)

In addition to their ideological speech problems, social media platforms – particularly Google, Amazon, and Facebook – present massive competition policy problems. They are economic monopolies whose speech concerns often exist downstream of their economic market power.

But the speech concerns posed by the platforms, including Twitter, which, despite its small size, wields an outsized influence on the national narrative, are increasingly legitimate and may require some type of common carrier approach. Legal luminary Justice Clarence Thomas has openly speculated that these companies have reached the threshold of being treated as such, and Sen. Bill Hagerty, R-Tenn., has authored a bill to do so.

Big Tech Interferes In Elections

There are other policy areas to examine as well. If social media is going to continue to ban or algorithmically suppress candidates and sitting incumbents, then they are now political actors in federal campaigns. Should that role be subject to regulation or consequence?

Should individuals be able to sue these companies for limiting the reach of their political or commercial speech? Should parents be able to sue for harm to their kids? Are common carrier regulations appropriate for the largest platforms, like Google, which act as key information curation sites for the world? Should users have more claim to their own data, especially if they are censored or banned? Do antitrust laws need to be updated for the digital marketplace?

Why is the content creation of social media companies – fact checks, trending topics, and the like – subject to Section 230 immunities, which only covers user-generated content?

Republicans seem poised to take back the House, at least, in this year’s midterms. And this presents the most central question of all: what, exactly is their actual legislative agenda as it relates to Big Tech? No, not hearings, not task forces, not working groups. What comprehensive pieces of legislation are they putting forward that are ready for votes on day one?

This is the question that remains the most elusive – and the one we all need to start asking them.