"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 . . . ."
--the 26 words that invented the Internet, in the 1996 Communications Decency Act
There's a minor dust-up, or perhaps a major storm--depending on your political point of view--involving the Biden family, Facebook, Twitter, the Ukrainians and, just to make it spicy, Rudy Giuliani.
The various media outlets cover it their own way. Here's how The Washington Post puts it:
"Facebook and Twitter took unusual steps Wednesday to limit readership of an article by The New York Post about alleged emails from Democratic presidential nominee Joe Biden's son, one of the rare occasions they have sanctioned a traditional media outlet.
"The social media giants took that action before verifying the contents of the article, in which President Trump's personal attorney Rudolph W. Giuliani and his former top adviser Stephen K. Bannon claimed to have obtained and leaked a trove of private materials from Hunter Biden. The leaked documents suggested at one point he gave a Ukrainian executive the 'opportunity' to meet the former vice president. The Biden campaign said his schedule indicated no such meeting took place.
"Facebook pre-emptively limited the spread of the story while sending it to third-party fact-checkers, a decision the company said it has taken on various occasions but is not the standard process. Twitter allowed the story to surge to a No. 3 trending topic in the U.S., although later marked the link as 'potentially unsafe' and blocked it. It also temporarily locked White House press secretary Kayleigh McEnany's account, as well as The New York Post's, adding notices to their tweets saying they violated Twitter's rules on prohibiting publishing hacked materials. Trump's campaign account was also temporarily locked."
So far, so 2020. If anybody is surprised that Facebook and Twitter have picked a side, they're not paying attention. And if anybody thought that this presidential campaign was going to be clean, bless your heart.
A few words stand out in the story, including "leaked" and "hacked." When we think of leaked information, we think of anonymous sources leaking government information. This was not an anonymous source, it was a self-identified computer shop owner who gave a hard drive, one supposedly on Hunter Biden's unclaimed personal computer, to both the FBI and Rudy Giuliani. Hacked is what happens when some unauthorized person interferes with your online presence. In this case, it was a hard drive on a computer, and even given willingly and without disguise to the FBI.
But there is a bigger story here--and the Bidens, leaked emails and the Ukrainians are only periphery matters. The larger issue: whether these social media giants are to continue to be what they claim to be. Or if they'd like to become publishers. Apparently, the bigs at various social media companies have been in the planning stages all year to step into the election, if they felt misinformation was being presented on their sites. The techs at these companies have been "scenario-planning" and waiting for the opportunity to catch Fake News in the act. They apparently found their chance with The New York Post story.
As the poet and former governor of Arkansas, Frank White, once put it: This could open a whole box of Pandoras. (Twitter reversed its decision over the weekend and began allowing the stories on its site. Facebook, not so much.)
Currently, the social media outfits can't be held responsible for what people post online--any more than your email provider can be held responsible for your planning a bank robbery with their product--because of something called Section 230 of the Communications Decency Act of 1996. The section essentially makes social media platforms electronic bulletin boards--bulletin boards that anybody can post to, but nobody edits.
Until now.
If Facebook, YouTube, Twitter,
et al., want to edit what people post, jump on in, the water's fine. It's called publishing. But publishers are held to a different standard. Newspapers, for example, can be sued for libel. So newspapers go to the trouble of fact-checking, researching, finding the news, and having editors yell at writers. (And vice versa.)
And newspapers, TV stations and radio stations on occasion issue corrections. There are all kinds of policies developed over the years in this publishing business. But one thing we didn't develop is a protection against libel. Which Section 230 gives social media.
And now the biggest names in tech want to start editing?
In the case before you, social media firms censored what is published in a traditional newspaper. And not just any newspaper. The New York Post claims to be the oldest newspaper in America, founded by none other than Alexander Hamilton. The paper involved was not relying on anonymous sources. And once something is published in a newspaper in America, whether news or opinion, it is in the public domain for everyone to see.
For the tech companies to edit this, they immediately become publishers, or should. And immediately are subject to publisher laws, including libel, or should be.
There is another major problem with the social media giants censoring traditional newspapers. Today many Americans get their news from social media. But what they get mostly comes from traditional newspapers, whether it is The New York Post, The New York Times, or the Arkansas Democrat-Gazette. These social media companies have become major distributors of news. If they pick and choose which newspapers, or which articles or columns, to distribute or censor on their own platform, they are then making editing decisions that make them publishers.
At the very least, these companies should lose the Section 230 protections that were supposed to go to electronic bulletin boards.
What have they wrought?
The courts should let them know.