This Wednesday, the FCC will take comments on NTIA’s petition on reforming Section 230 of the Communications Decency Act, a provision enacted in 1996 to address a narrow set of concerns involving nascent internet platforms that then played only a marginal role in American life. The purpose of the provision made sense at that moment in internet history: Section 230 sought to insulate the newly emerging technology companies from liability risks they might otherwise face if they were deemed a publisher or speaker in the traditional sense.
Congress had no way to foresee a quarter century ago that this provision, intended to protect struggling startups at the dawn of the internet, would ultimately be wielded by the largest and most powerful companies in the world as a shield not just from unfair and frivolous lawsuits, but from what many consider to be every day responsibilities.
Since that time, America’s tech platforms have grown from their humble beginnings into the most powerful forces in the global economy today. Five tech giants (Facebook, Amazon, Apple, Microsoft, Google) alone make up about 25% of the S&P 500 with valuations growing, even in a pandemic. The decisions these companies make on a daily basis – which search results to rank first, which products to promote, which news stories to feature, and which third parties they will deal with and on what terms – shape virtually every aspect of America’s economic, social and political life. Yet those decisions are shrouded in obscurity, away from public view, in a world where black-box algorithms and non-negotiable terms pick winners and losers in every sphere of public life.
In comments this Wednesday, AT&T will join the growing consensus of voices concluding that online platforms should be more accountable for, and more transparent about, the decisions they control that fundamentally shape how we communicate, learn, shop, and are informed and entertained. We argue first that the dominant online platforms owe the public greater transparency about the choices made on their platforms. Such transparency is considered table stakes in every discussion about broadband networks owned by ISPs.
We also argue that Section 230 immunity should be modified to reduce the gross disparities in legal treatment that have emerged between the dominant online platforms and the traditional purveyors of third-party content, such as book publishers, newspapers, or radio and television businesses. There is no longer any reason that the nation’s most powerful online platforms should enjoy legal immunities unavailable to similarly-situated traditional companies.
And as the net neutrality debate soldiers on, as it surely will, the Section 230 debate and the broader tech scrutiny underway should serve as a reminder of where the power to control access to content, websites and e-services on the internet really resides – and the neutrality debate that really matters. Adopting an ISP-only “neutrality” regime is as backwards looking as it is mistargeted. It would be akin to landing the plane, but on the wrong day, at the wrong gate, and in the wrong airport.