Will Congress rip up the Magna Carta of the Internet? Thursday's hearing in the House of Representatives with the chief executives of Facebook, Google and Twitter augurs ill.
Section 230 of the Communications Decency Act is only 26 words long, but by protecting online services from liability for user-generated material, the provision has had an outsize impact on the Web--and on our national conversation. Mark Zuckerberg, Sundar Pichai and Jack Dorsey appeared virtually to answer questions, and more often to absorb criticism. Their platforms, Democratic legislators charged, allow anti-vaccine advocates to scare citizens away from getting their coronavirus immunization. They let conspiracy theorists lure grandparents down the rabbit hole. They give quarter to hatred and encourage violence. Or, on the contrary, as Republicans allege, the platforms are tools of a "woke" left-wing bent on systematically censoring conservatives.
The problem: Most of these harms aren't illegal speech.
That doesn't mean there's not room for change. Lawmakers could pass a law like the proposed PACT Act that would require services to remove content that is illegal after a court rules it so. They could also probe the matter of what's illegal in the first place: asking whether there are forms of online speech, such as deceptive practices related to voting or coordinated harassment campaigns, that they could constitutionally make unlawful. They could consider revising what it means for sites to develop content rather than merely host it, including whether promotion through algorithms or advertisements should change companies' responsibility.
The key to any changes is transparency. Congress could require large firms to issue reports on the prevalence of the certain harms as well as on related enforcement actions. These would capture both illegal content and the legal content that worries lawmakers today. Liberals concerned about misinformation would better understand how it circulates, and conservatives concerned about bias would better understand how discipline is meted out. Mandated appeals processes would further ameliorate censorship concerns.
Section 230 cleared the way for Facebook, Google and Twitter, but it also cleared the way for streaming services, restaurant review hubs and comments sections on websites of all shapes and sizes. Thoughtful reform could do some good. Thoughtless reform will do far more harm. And there's another threat: Congress wades into dangerous First Amendment territory when it drafts laws that would force companies to get rid of legal speech that legislators dislike--but also when it tries to strong-arm companies through public excoriation into doing the exact same thing. What message does that send to the rest of the world?