Cancel Section 230’s Cancel PowersOpinion by Scott Cleland, April 21, 2021
Section 230 warrants repeal because it created, and empowers, two different types of problematic power-without-accountability to customers, competition, government or the courts.
Section 230’s extraordinary unaccountability advantages for Internet companies are an out-of-control, Big Tech monopoly-making machine.
There is no antitrust fix for Big Tech monopolization without first, or simultaneously, repealing Section 230, the evident root cause of, and superpower behind, Big Tech’s evident monopolistic impunity.
Section 230’s Wild West Internet policy and law empowers Big Tech to cancel and deplatform any competitor or dissenter, even the President of the United States, with impunity.
Wild West Internet policy long ago de facto cancelled Americans’ First Amendment freedoms when it also de facto cancelled the U.S. Constitution, Bill of Rights, rule-of-law, and due process online, and replaced them with private governance of algorithmic rule-of-code, Terms-of-Service, and End User Licensing Agreements.
That is the law as interpreted by the courts. Only Section 230 repeal can constitutionally fix that mess.
U.S. antitrust enforcement and Section 230 unaccountability cannot successfully be addressed separately, because Section 230 is America’s Internet competition law.
Section 230 is part of the 1996 Telecommunications Act, that had a purpose “to promote competition and reduce regulation;” and Section 230 sets U.S. Internet policy as an Internet “unfettered by Federal or State regulation.”
No other modern law has been more about competition, and no other section of the 1996 Telecom Act did more to advantage nascent Internet competitors to succeed globally, by granting nascent Internet companies special sweeping protections from competitors, regulators, and negligence lawsuits.
Those extraordinary advantages succeeded in America dominating the Internet globally and enabling the Internet to become ubiquitously adopted and useful to most everyone today.
However, at some point in the last twenty-five years that nurtured infant industry became a mature industry juggernaut that commands more market power than all previous incumbents before it.
Section 230’s then pro-competitive, 1996, infant Internet protections from competition, regulation and liability, eventually became anti-competitive, Big Tech winner-take-all advantages, subsidies and impunities.
No surprise, after twenty-five years of the U.S. government giving Internet companies every conceivable government advantage, privilege and subsidy Big Tech utterly dominates markets for information, communications and consumer spending in the United States and much of the world.
If Section 230’s globalist, Internet-first, competition policy continues unfettered, today’s already dominant Internet platforms will only continue to dominate and monopolize, the rest of the economy that they have yet to cancel, command or control.
The terrifying logical conclusion of continuing this unfettered tech-first policy of monopolistic impunity, is one integrated private/public sector network for everything in America — just like China has now.
Also, if Section 230’s extraordinary impunity continues unfettered, Big Tech will be emboldened to continue to cancel and deplatform whatever competitor or dissenter that presents a potential threat to their online hegemony..
Tellingly, Supreme Court Associate Justice Clarence Thomas has spotlighted Section 230’s big problem of dominant private parties having government immunity to censor or cancel public speech and government speakers.
He warns of the competition problem of “dominant digital platforms” having “dominant market share,” “network size” and “highly concentrated” control.
He warns of Section 230’s problem of giving digital platforms “unrestricted authority” and “unbridled control” of “unprecedented… concentrated control of so much speech in the hands of a few private parties.”
He warns that the Supreme Court has not reviewed Section 230 for twenty-five years. In that vacuum, he warned that lower courts were “extending Section 230 immunity beyond the natural reading of the text… [and that] … can have serious consequences.”
Justice Thomas also concluded by implying Section 230 is not working. “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.” Translation: the courts will have to fix this if Congress does not.
At a February 25 House Judiciary Committee hearing, Ranking Member Jim Jordan clearly warned Big Tech, “if they continue to undermine the First Amendment, and other liberties that Americans enjoy, Section 230 protections should go away. Its really that basic.”
Senate Judiciary Committee Ranking Member Chuck Grassley, in an April 13 floor statement on the power of Big Tech to censor free speech, said: “It’s time to examine the need for Section 230 immunity… and to what extent these tech companies are abusing their monopoly power.”
“When a company has monopoly power it is no longer constrained by market forces… the only choice consumers have is to take it or leave it. Section 230 appears to compound this problem. These companies are unaccountable to their customers, the courts and to the government …The system is rigged.”
The more Congress investigates “the need” for Section 230 the more they will find a luxury legal aid subsidy for non-needy, billionaires.
If one focuses on how Section 230 is used and abused, it becomes obvious that it’s a one-sided loophole that only benefits Internet companies at everyone else’s expense by ensuring Internet companies are not held responsible for harms their businesses facilitate online.
Section 230 is the most America-last, technology-first law and policy imaginable, that does virtually nothing to protect America, Americans, or children online.
At bottom, Section 230 is an inherently parasitic premise, a one-way loophole, that protects platforms from people by not protecting people from platforms.
It’s that simple.
A simple problem means Congress has a simple decision.
Do American voters want Big Tech unaccountable, and people unprotected online? Or do American voters want Big Tech accountable, and people protected online, by repealing Section 230?
Elected officials know it is the latter.
Scott Cleland is President of Precursor®, a responsible Internet consultancy. He served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration; and Institutional Investor twice ranked him the #1 independent analyst in communications when he was an investment analyst. He is author of Search &Destroy: Why You Can’t Trust Google Inc. and publisher of Googleopoly.net.