Tech platforms are facing the prospect of a roll-back on US legal protections that could make them liable for the content shared on their sites. Google and Twitter have implored lawmakers not to repeal the law, but Facebook CEO Mark Zuckerberg has broken ranks to say that the legislation should be modified. It’s not the first time that Zuckerberg has gambled with the principles of the free and open web, but why?
Section 230 of the 1996 Communications Decency Act is considered the cornerstone of online speech. Repealing the Act would radically infringe on what and how users share on the internet. But it’s under siege from both sides of the political aisle. Both President Donald Trump and Democratic presidential candidate Joe Biden have said that they wish to repeal the Act in its entirety, albeit for very different reasons.
During a Senate hearing on 28 October, Twitter CEO Jack Dorsey argued that repealing Section 230 could "collapse how we communicate on the internet" and leave "only a small number of giant and well-funded" tech firms to compete. Google CEO Sundar Pichai said, “I would urge the committee to be very thoughtful about any changes to Section 230 and to be very aware of the consequences those changes might have on businesses and consumers.”
But Zuckerberg was more gung-ho, actively calling for reform of the legislation. After briefly enumerating the legislation’s merits, he went on to say that “the debate about Section 230 shows that people of all political persuasions are unhappy with the status quo. People want to know that companies are taking responsibility for combatting harmful content – especially illegal activity – on their platforms. They want to know that when platforms remove content, they are doing so fairly and transparently. And they want to make sure that platforms are held accountable.” Zuckerberg said he supported “updating” Section 230, as long as it was done with a consideration of the potential consequences.
But perhaps this shouldn’t come as a surprise. It’s not the first time that the company has broken with its industry peers on potentially internet-imperilling legislation. Zuckerberg supported a previous amendment to Section 230 that passed in 2018 – the FOSTA/SESTA bill, which criminalises platforms for “enabling” sex trafficking.
Despite warnings that the bill would harm smaller social platforms, unfairly target sex workers, and drive sex trafficking underground to less visible platforms, Facebook’s support helped the bill pass.
In recent years, Zuckerberg has also been increasingly open to more government oversight. He told the Senate hearing, “I believe we need a more active role for governments and regulators, which is why in March last year I called for regulation on harmful content, privacy, elections, and data portability.”
“Facebook for a while has been saying that they want more moderation and more regulation, in that they want someone else to write the rules,” technology analyst Benedict Evans told the New Statesman.
One reason for this all of this might be optics. Facebook has come under an increasing amount of pressure in recent years for its patchy and inconsistent content moderation practices. Zuckerberg is renowned for wheeling out his favourite line, that Facebook shouldn’t be the arbiter of truth, while simultaneously acting as the arbiter of truth. The company was a target of the Stop Hate for Profit campaign this summer which persuaded advertisers to take a month’s hiatus from the platform to protest its perceived inaction on hate speech.
Facebook’s attempts to set up a “supreme court” of moderation was recently upstaged by a challenger effort launched by advocacy group The Citizens, calling itself “The Real Facebook Oversight Committee”. The group has aggressively pilloried Facebook over its haphazardly applied policies. This echoes the calls of the Democrats in the US, who have for a couple of years been urging the company to go further – to remove hate speech, calls to violence, and more recently, disinformation, from the site.
But beyond optics, there is another incentive at play. “The cynical view of this would be that regulation always tends to favour the incumbent, because it tends to bake in the existing industry structures, and it tends to impose a layer of cost that incumbents are more easily able to deal with,” said Evans.
In effect, Facebook’s move could be viewed as exploiting Section 230 to grow its own user base as much as possible, then swiftly pulling up the drawbridge behind it. Although Instagram is still flourishing and Facebook continues to add users across the globe, younger people are increasingly bypassing the now somewhat antiquated platform in favour of nimbler competitors – first Snapchat, then TikTok. It could be that Zuckerberg envisages greater regulatory restrictions as a form of Facebook future-proofing. With greater regulatory burdens, innovators in the space might not bother.
[See also: What would happen if Twitter and Facebook switched off Trump?]
Even though they’re sounding more caution, the likes of Google and Twitter also have the resources to moderate their platforms in line with another Section 230 reform. It’s other, smaller platforms that will bear the brunt of any changes. Reddit’s general counsel Benjamin Lee told the tech news site Protocol, “Unraveling 230 would basically further ensure that dominance, while undermining the ability of smaller companies like Reddit to challenge that dominance with alternative models of innovation.”
Facebook’s former information security officer Alex Stamos has even suggested that Facebook could end up offering “moderation as a service” to smaller competitors.
All of this shines a light on the pertinent topic of how some of the biggest and most populated platforms in the world should moderate content. “Should a 30-year-old product manager in Menlo Park be deciding the basis of political speech?” said Evans. He points out that at present, politicians seem to spout dichotomous position which is the simultaneous view that “Facebook has too much power” and “Facebook must silence people I disagree with”. “Which of those is it that [they] believe?” he said.
People often argue that Facebook is a private company, so the right to the First Amendment doesn’t apply. But for a company as big and important as Facebook, if you’re kicked off, “that has free speech implications”, argues Evans.
Both Zuckerberg and Dorsey suggest that platforms should be compelled to operate more transparently and give users the right to appeal decisions they think are unjustified. These would be welcome changes, but by endorsing the modification of Section 230, Zuckerberg is playing with fire. Whether out of a genuine desire for guidance on content moderation, brand optics, or to protect Facebook’s bottom line, he is gambling with the experience of every internet user.
[See also: What Trump’s threat to ban TikTok and WeChat means for the future of the internet]