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A K Bhattacharya 

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The top U.S. tech companies are now among the biggest businesses on earth by market capitalization. But their size is not the important thing about them. Earlier this month, the House Judiciary Committee’s Antitrust Subcommittee released the findings of its 16-month long investigation into Big Tech. The conclusion? “Apple, Amazon, Google and Facebook each possess significant market power over large swaths of our economy. In recent years, each company has expanded and exploited their power of the marketplace in anticompetitive ways.”

Cue years of antitrust actions that will enrich a great many lawyers and have minimal consequences for competition, like the ultimately failed attempt 20 years ago to prevent Microsoft from dominating software.

An antitrust action against Amazon is doomed. Consumers love the company. It has measurably reduced the prices of innumerable products as well as rendering shopping in bricks-and-mortar stores an obsolescent activity. Good luck, too, with breaking up Google. Even the much less trusted Facebook (according to polls) will be hard to dismantle, without a complete transformation of the way the courts apply competition law. It’s free, for heaven’s sake. And there are network effects on the internet that can’t be wished away by judges.

Is it stupidity or venality that has convinced America’s legislators that antitrust is the answer to the problem of Big Tech? A bit of both, I suspect. Either way, it’s the wrong answer.

The core problem is not a lack of competition in Silicon Valley. It is that the network platforms are now the public sphere. Every other part of what we call the media — newspapers, magazines, even cable TV — is now subordinated to them. In 2019, the average American spent 6 hours and 35 minutes a day using digital media, more than television, radio and print put together.

Not only do the big tech companies dominate ad revenue, they drive the news cycle. In 2017, two-thirds of American adults said they got news from social media sites. A Pew study showed that, at the end of 2019, 18% of them relied primarily on social media for political news. Among those aged 30 to 49, the share was 40%; among those aged 18 to 29, it was 48%. The pathologies that flow from this new reality are numerous. Antitrust actions address none of them.

“I thought once everybody could speak freely and exchange information and ideas, the world is automatically going to be a better place,” Evan Williams, one of the founders of Twitter, told the New York Times in 2017. “I was wrong about that.” Indeed, he was.

Subject to the most minimal regulation in their country of origin — far less than the TV networks in their heyday — the network platforms tend, because of their central imperative to sell the attention of their users to advertisers, to pollute national discourse with a torrent of fake news and extreme views. The effects on the democratic process, not only in the U.S. but all over the world, have been deeply destabilizing.

Moreover, the vulnerability of the network platforms to outside manipulation has posed and continues to pose a serious threat to national security. Yet half-hearted and ill-considered attempts by the companies to regulate themselves better have led to legitimate complaints that they are restricting free speech.

How did we arrive at this state of affairs — when such important components of the public sphere could operate solely with regard to their own profitability as attention merchants? The answer lies in the history of American internet regulation — to be precise, in section 230 of the 1934 Communications Act, as amended by the 1996 Telecommunications Act, which was enacted after a New York court held the online service provider Prodigy liable for a user’s defamatory posts.

Previously, a company that managed content was classified as a publisher, and subject to civil liability — creating a perverse incentive not to manage content at all. Thus, Section 230c, “Protection for ‘Good Samaritan’ blocking and screening of offensive material,” was written to encourage nascent firms to protect users and prevent illegal activity without incurring massive content-management costs. It states:

1. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

2. No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.

In essence, Section 230 gave and still gives websites immunity from liability for what their users post (under-filtering), but it also protects them when they choose to remove content (over-filtering). The idea was to split the difference between publisher’s liability, which would have stunted the growth of the fledgling internet, and complete lack of curation, which would have led to a torrent of filth. The surely unintended result is that some of the biggest companies in the world today are utilities when they are acting as publishers, but publishers when acting as utilities, in a way rather reminiscent of Joseph Heller’s “Catch-22.”

Here’s how Catch-22 works. If one of the platforms hosts content that is mendacious, defamatory or in some other way harmful, and you sue, the Big Tech lawyers will cite Section 230: Hey, we’re just a tech company, it’s not our malicious content. But if you write something that falls afoul of their content-moderation rules and duly vanishes from the internet, they’ll cite Section 230 again: Hey, we’re a private company, the First Amendment doesn’t apply to us.

Remember the “good censor”? Another influential way of describing the network platforms is as the “New Governors.” That creeps me out the way Zuckerberg’s admiration of Augustus Caesar creeps me out.

For years, of course, the big technology companies have filtered out child pornography and (less successfully) terrorist propaganda. But there has been mission creep. In 2015, Twitter added a new line to its rules that barred promoting “violence against others … on the basis of race, ethnicity, national origin, religion, sexual orientation, gender, gender identity, age, or disability.” Repeatedly throughout the Trump presidency — for example, after the violence in Charlottesville, Virginia, in 2017 — there have been further modifications to the platforms’ terms of service and “community standards,” as well as to their non-public content moderation policies.

There is no need to detail all the occasions in recent years when mostly right-leaning content was censored, buried far down the search results, or “demonetized.” The key point is that, in the absence of a coherent reform of the way the network platforms are themselves governed, there has been a dysfunctional tug-of-war between the platforms’ spasmodic and not wholly sincere efforts to “fix” themselves and the demands of outside actors (ranging from the German government to groups of left-wing activists) for more censorship of whatever they deem to be “hate speech.”

At the same time, the founding generation of Silicon Valley entrepreneurs, most of whom had libertarian inclinations, have repeatedly yielded to internal pressure from their younger employees, schooled in the modern campus culture of “no-platforming” any individuals whose ideas they consider “unsafe.”  In the words of Brian Amerige, whose career at Facebook ended not long after he created a “FB’ers for Political Diversity” group, the company’s employees “are quick to attack — often in mobs — anyone who presents a view that appears to be in opposition to left-leaning ideology.”

The net result seems to be the worst of both worlds. On the one hand, conspiracy theories such as Plandemic flourish on Facebook and elsewhere. On the other, the network platforms arbitrarily intervene when a legitimate article triggers the hate-speech-spotting algorithms and the content-moderating grunts. (As one of them described the process, “I was like, ‘I can just block this entire domain, and they won’t be able to serve ads on it?’ And the answer was, ‘Yes.’ I was like, ‘But … I’m in my mid-twenties.’”)

At a lecture at Georgetown University in October 2019, Zuckerberg pledged “to continue to stand for free expression” and against an “ever-expanding definition of what speech is harmful.”  But even Facebook has had to ramp up the censorship this year. The bottom line is that the good censors are not very good and the new governors can’t even govern themselves.

Two years ago, I wrote a lengthy paper on all this with a well-worn title, “What Is to Be Done?” Since then, almost nothing has been done, beyond some legislative tinkering at the margins. The public has been directed down a series of blind alleys: not only antitrust, but also net neutrality and an inchoate notion of tighter regulation. In reality, as I argued then, only two reforms will fix this godawful mess.

First, we need to repeal or significantly amend Section 230, making the network platforms legally liable for the content they host, and leaving the rest to the courts. Second, we need to impose the equivalent of First Amendment obligations on the network platforms, recognizing that they are too dominant a part of the public sphere to be able to regulate access to it on the basis of their own privately determined and almost certainly skewed “community standards.”

To such proposals, Big Tech lawyers respond by lamenting that they would massively increase their clients’ legal liabilities. Yes. That is the whole idea. The platforms will finally discover that there are risks to being a publisher and responsibilities that come with near-universal usage. 

In recent few years, these ideas have won growing support — and not only among Republican legislators such as Senator Josh Hawley. In the words of Judge Alex Kozinski in Fair Housing Council v. Roommate.com (2008), “the Internet has outgrown its swaddling clothes and no longer needs to be so gently coddled.” He was referring to Section 230, which gives the tech giants a now-indefensible advantage over traditional publishers, while at the same time empowering them to act as censors. 

While Section 230 protects internet companies from liability over removing any content that they believed to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable,” successive court rulings have clearly established that the last two words weren’t intended to permit discrimination against particular political viewpoints. 

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