| A second committee gets its shot at social media platform CEOs and much of the hearing runs much like the one at the end of last month. |
It was with some reluctance that I watched the Senate Judiciary Committee’s hearing with Facebook and Twitter’s CEO given the other Senate hearing at which they appeared a few weeks ago. This hearing was prompted by the two platform’s “censorship” of a dubious New York Post article on Hunter Biden’s business practices that seems to have been planted by Trump campaign associates. At first, both Facebook and Twitter restricted posting or sharing the article in different ways but ultimately relented. Whatever their motivation and whether this was appropriate strike me as legitimate policy questions to ask. However, to criticize social media platforms for doing what is entirely within their rights under the liability shield provided by 47 U.S.C. 230 (Section 230) seems a bit much. Nonetheless, both Mark Zuckerberg and Jack Dorsey faced pointed questions from both Republicans and Democrats who profess to want to see change in social media. And yet, it remains unlikely the two parties in Congress can coalesce around broad policy changes. Perhaps targeted legislation has a chance, but it seems far too late in this Congress for that to happen.
Chair Lindsey Graham (R-SC) took an interesting approach and largely eschewed the typical Republican approach to rail against an anti-conservative biases social media platforms allegedly have despite little in the way of evidence to support these claims. Graham cited a handful of studies showing that social media engagement might be linked to harm to children and teenagers. This was an interesting approach given the hearing was ostensibly about censorship, content moderation, and Section 230. Perhaps Graham is using a modified rationale similar to the one undergirding Graham’s bill, the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020” (EARN IT Act of 2020) (S.3398) (i.e., children are at risk and are being harmed, hence Section 230 must be changed.) Graham did, of course reference the New York Post article but was equivocal as to its veracity and instead framed Twitter and Facebook’s decisions as essentially overriding the editorial choices of the newspaper. He also discussed a tweet of former United Nations Ambassador Nikki Haley that cast doubt on the legality and potential for fraud of mail-in voting that has a label appended by Twitter. Graham contrasted Haley’s tweet with one from Iran’s Ayatollah that questioned why many European nations outlaw Holocaust denial but allow Mohammed to be insulted. This tweet was never fact checked or labeled. Graham suggested the Ayatollah was calling for the destruction of Israel.
Graham argued Section 230 must be changed, and he expressed hope that Republicans and Democrats could work together to do so. He wondered if social media platforms were akin to media organizations given their immense influence and, if so, perhaps they should be regulated accordingly and open to the same liability for publishing defamatory material. Graham called for changes to Section 230 that would establish incentives for social media platforms to make changes such as a more open and transparent system of content moderation, including the biases of the fact checkers. He conceded social media platforms have the almost impossible task of telling people what is reliable and what is not. Finally, he framed social media issues as health issues and compared their addictive effect and harm to cigarettes.
Senator Richard Blumenthal (D-CT) made an opening statement in place of Ranking Member Dianne Feinstein (D-CA), suggesting the possibility that the latter did not want to be associated with this hearing that the former called not serious and a political sideshow. In any event, Blumenthal repeated many of his previously articulated positions on social media companies and how they are currently harming the United States (U.S.) in a number of ways. Blumenthal claimed President Donald Trump is using the megaphone of social media in ways that are harming the U.S. and detrimental to democracy. He called social media terrifying tools of persuasion with power far exceeding the Robber Barons of the last Gilded Age. Blumenthal further claimed social media companies are strip mining the personal data of people to their great profit while also promoting hate speech and voter suppression. Blumenthal acknowledged the baby steps Twitter and Facebook made in trying to address these problems but remarked parenthetically that Google was not required to appear at the hearing, an apparent reward for doing less than the other two companies to combat lies and misinformation.
Blumenthal said the hearing was not serious and was a political sideshow. Blumenthal remarked that “his colleagues” (by which he almost certainly meant Republicans) did not seem interested in foreign interference in U.S. elections and the calls for the murder of Federal Bureau of Investigation Director Christopher Wray and National Institute of Allergy and Infectious Diseases (NIAID) Director Anthony Fauci. Blumenthal said the purpose of the hearing was to bully Facebook, Twitter, and other platforms. He called for serious hearings into “Big Tech,” specifically on antitrust issues as the companies have become dominant and are abusing their power. He specifically suggested that Instagram and WhatsApp be spun off from Facebook and other companies broken up, too. Blumenthal called for strong privacy legislation to be enacted. He said “meaningful” Section 230 reform is needed, including a possible repeal of most of the liability protection, for the immunity shield is way too broad and the victims of harm deserve their day in court. Blumenthal vowed to keep working with Graham in the next Congress on the EARN IT Act, a sign perhaps that the bill is not going to get enacted before the end of the year. Graham noted, however, that next year should the Republicans hold the Congress, Senator Chuck Grassley (R-IA), the Senate’s President Pro Tempore, would become chair. Graham expressed his hope Grassley would work on Section 230.
Facebook CEO Mark Zuckerberg again portrayed Facebook as the platform that gives everyone a voice and then pivoted to the reforms implemented to ensure the company was not a vessel for election misinformation and mischief. Zuckerberg touted Facebook’s voter registration efforts (more than 4.5 million), its role in helping people volunteer at polls, and its efforts to disseminate factual information about when, where, and how Americans could vote. He turned to Facebook’s efforts to combat misinformation and voter suppression and the steps it took on election day and thereafter. Zuckerberg touted the lessons Facebook learned from the 2016 election in the form of changed policies and greater awareness of efforts by other nations to spread disinformation, lies, and chaos. Incidentally (or perhaps not so incidentally) Zuckerberg did not discuss the platform’s efforts to take on domestic efforts to undermine U.S. democracy. He, did, however reveal that Facebook is funding a “partnership with a team of independent external academics to conduct objective and empirically grounded research on social media’s impact on democracy.” Beyond remarking that Facebook hopes to learn about its role in this dynamic, he did not pledge any particular action on the basis of this study.
Zuckerberg reiterated Facebook’s positions on Section 230 reform:
I’ve also called for Congress to update Section 230 of the Communications Decency Act to make sure it’s working as intended. Section 230 allows us to provide our products and services to users by doing two things:
- First, it encourages free expression. Without Section 230, platforms could potentially be held liable for everything people say. Platforms would likely censor more content to avoid legal risk and would be less likely to invest in technologies that enable people to express themselves in new ways.
- Second, it allows platforms to moderate content. Without Section 230, platforms could face liability for doing even basic moderation, such as removing hate speech and harassment that impacts the safety and security of their communities.
Thanks to Section 230, people have the freedom to use the internet to express themselves, and platforms are able to more effectively address risks. Updating Section 230 is a significant decision, but we support the ideas around transparency and industry collaboration that are being discussed in some of the current bipartisan proposals, and I look forward to a meaningful dialogue about how we might update the law to deal with the problems we face today.
It’s important that any changes to the law don’t prevent new companies or businesses from being built, because innovation in the internet sector brings real benefits to billions of people around the world. We stand ready to work with Congress on what regulation could look like, whether that means Section 230 reform or providing guidance to platforms on other issues such as harmful content, privacy, elections, and data portability. By updating the rules for the internet, we can preserve what’s best about it—the freedom for people to express themselves and for entrepreneurs to build new things—while also protecting society from broader harms.
Twitter CEO Jack Dorsey explained Twitter’s content moderation policies, especially those related to the election. He stressed that Congress should build upon the foundation laid in Section 230 either through additional legislation or in helping to create private codes of conduct social media companies would help craft and then abide. He asserted that removing Section 230 protection or radically reducing the liability shield would not go to the problem of addressing problematic speech on social media and would indeed cause most platforms to retrench and more severely restrict speech, an outcome at odds with what Members desire. Dorsey then trotted the idea that carving out Section 230, as many of the bills introduced in this Congress propose to do, would create a complicated competitive landscape that would favor large incumbents with the resources to comply while all but shutting out smaller competitors. Regardless of whether this is likely to happen, it is shrewd testimony given the anti-trust sentiment on Capitol Hill and the executive branch towards large technology firms.
In terms of any concrete recommendations for Congress, Dorsey noted:
Three weeks ago, I told the Senate Committee on Commerce, Science and Transportation that I believe the best way to address our mutually-held concerns is to require the publication of moderation processes and practices, a straightforward process to appeal decisions, and best efforts around algorithmic choice, while protecting the privacy of the people who use our service. These are achievable in short order.
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Michael Kans 