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Washington’s first attempt at regulating Big Tech is a joke

New legislation proposed by Sen. Josh Hawley that’s intended to rid social media of supposed political bias ignores the platforms’ real problems.

Facebook CEO Mark Zuckerberg surrounded by cameras and microphones and photographers and journalists.
Facebook CEO Mark Zuckerberg testified at a Senate committee meeting in April 2018.
Chip Somodevilla/Getty Images
Peter Kafka covers media and technology, and their intersection, at Vox. Many of his stories can be found in his Kafka on Media newsletter, and he also hosts the Recode Media podcast.

Lots of people say they want Washington to take a firmer hand and start regulating Silicon Valley’s most powerful companies, which have had almost zero oversight for years.

But what if our elected officials can’t hack it?

Regulating big, complicated companies can be a technical challenge. But Washington already regulates all kinds of complex industries. The real issue with regulating tech may be that our leaders aren’t really serious about regulating it.

Case in point: New legislation proposed by Sen. Josh Hawley (R-MO) that’s supposed to rid Facebook, Google, and Twitter of supposed political bias. The idea is that the federal government will strip away protections that shield those companies from being held accountable for the content their users upload and they distribute — and will only restore those protections once the companies can prove they aren’t favoring one end of the political spectrum.

This is an actual bill, proposed by a real senator, so I’ll take a little time to explain why it’s a lousy idea. But the short version is that this is a more sophisticated version of the clumsy email-harvesting site the White House unveiled last month, asking Americans to self-report incidents of bias and censorship on social networks. Not because anti-conservative bias is a real problem on platforms like Twitter and Facebook, but because it’s a good way to whip up voters and donors who would like to believe those companies are out to suppress them.

My Vox Media colleague Casey Newton has a nice summary of why the “Facebook (or Twitter or YouTube or whoever) is out to get conservatives” meme is a silly one, unsupported by any useful data. Here’s the money paragraph:

“The truth is that social networks have been a boon to partisans of every stripe — conservatives especially. A conservative social media star became the president of the United States — and a liberal social media star seems well on her way to higher office, despite being in her first term in Congress. The real bias of social networks, as Mark Zuckerberg has acknowledged, is toward the extremes.”

On to the bill itself: Its main idea is to remove Section 230 from the 1996 Communications Decency Act, which says that big internet publishers that distribute content supplied by their users — think Twitter, YouTube, Facebook — aren’t held liable for the content those users supply.

Hawley, though, describes that protection from lawsuits as a “subsidy” given to big internet companies. And he says they should have to prove themselves worthy of that protection by convincing at least four of the five members of the Federal Trade Commission that they’re not politically biased — a process they would have to repeat every two years.

How would Twitter or Facebook successfully prove that to the satisfaction of the FTC members? Hawley’s bill doesn’t tell us. It just says the companies need to provide “clear and convincing evidence that the provider does not … moderate information provided by other information content providers in a politically biased manner.”

The bill does say, however, that theoretically aggrieved “information content providers” could provide “complaints or evidence” that they’ve been discriminated against, and that they could “attend or participate in any hearings that the Commission holds with respect to an application for certification from a provider.” Pull up two chairs, Diamond and Silk. We’ve got microphones waiting for you.

Here’s a fair and balanced aside: One possible upside to Hawley’s bill would be if it pushed the platforms to provide more transparency about the rules they use to moderate content and the thinking behind individual decisions. That also happens to be one of the things my colleagues at Vox have asked for from YouTube, in the wake of the controversy with conservative commentator Steven Crowder. (YouTube frustrated just about everyone by at first declining to take action against Crowder for harassing Vox journalist Carlos Maza, then changing its stance, and then changing it again.)

But it’s one thing to offer more transparency and another to disprove a negative — and to prove it to regulators appointed by the president that could easily turn down a request for liability protection for purely partisan reasons. If they wanted to.

Here we should also point out that it’s quite striking to see conservatives, who were happy to see the demise of the Fairness Doctrine, which required broadcasters to present differing viewpoints on controversial issues, now insist that internet platforms should do the same thing. You could also argue that the government telling internet platforms that they need to provide access to any particular ideology is a clear violation of free speech principles.

Sen. Hawley’s office made clear it disagrees. In an emailed statement, it seemed to give up the pretense that this is a serious bill, arguing that the bill is “about stopping Big Tech’s assault on free speech.”

If you truly think Google and other companies are preventing your ability to speak — as opposed to moderating their own commercial properties — then we can’t have a real discussion about the very real problems the platforms do have. Like, for instance, the fact that Russia and other bad actors are almost certainly going to try to use the platforms to interfere with the 2020 elections — as they did, seemingly without consequence, in 2016.

It would be an interesting thought experiment, though, to imagine what would happen to the platforms if they did lose their liability protection. Their business models rely on an endless supply of content, uploaded free, by users “who don’t have to ask for permission first,” as Facebook CEO Mark Zuckerberg put it last year.

But maybe the giant platforms are now so enormous that they don’t need to distribute an infinite amount of content anymore — maybe they could survive by bringing in enormous but manageable amounts of content, which they could actually review before publishing — kind of like a media company. This used to be an unthinkable thought, and still seems to be if you talk to the people who run the platforms. But maybe that’s where we are headed, like it or not.

Recode and Vox have joined forces to uncover and explain how our digital world is changing — and changing us. Subscribe to Recode podcasts to hear Kara Swisher and Peter Kafka lead the tough conversations the technology industry needs today.

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