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Section 230 Is a Subsidy for Surveillance

by | Dec 19, 2022

Section 230 Is a Subsidy for Surveillance

by | Dec 19, 2022

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The Twenty-Six Words That Created the Internet is a nice book title. It might even be an interesting read. But it is also false. Tim Berners-Lee invented the World Wide Web. He stated that the power of the Web was its universality as a permissionless, decentralized, censorship-resistant ledger.

Since we are a litigious society, a legal question arose regarding whether a service provider was liable for the content it hosted on the internet. In Cubby, Inc. vs. CompuServe, Inc., the Court held that: “CompuServe has no more editorial control over such a publication [as Rumorville] than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.”

What a glorious ruling! Upholding an absolutist free speech position subject to one condition. The host is not responsible for what it hosts if it does not do surveillance and therefore has no knowledge of the content it’s hosting. Responsibility is attributed to the person posting the content, and the host is acknowledged as a neutral actor, nothing but infrastructure. Hallelujah!

Several years later there was another lawsuit, Stratton Oakmont, Inc vs Prodigy Services Co. Here the Court ruled that Prodigy was in fact not a host but instead a publisher because it posted a Terms of Service, performed surveillance, and moderated content. 

Let’s review those twenty-six words: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Well, the Court already established that as long as you functioned as a bulletin board, had no editorial policy, and did no surveillance that you were, in fact, already a host and had no liability. 

In 1996 the U.S. Congress passed the Communications Decency Act, which included Section 230, extending immunity to providers who conduct good faith moderation of content deemed to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” This section extended, enabled, and subsidized the surveillance state.

As currently applied to so-called social media platforms—which, as NSA whistleblower Edward Snowden opined are more likely surveillance companies masquerading as a social media platforms—Section 230 immunity protects algorithmic intervention to prefer some material to others, throttling, shadow-banning and labeling undesirable content. Immunity is provided for banning constitutionally-protected speech, which our government obviously believes is dangerous enough to grant licenses to those who hunt down and remove “objectionable content.”

The internet did not need those twenty-six words to be expressed by any act of Congress. Our common law system, protecting our inalienable rights, had already confirmed those twenty-six words before Section 230 was written. It was already the law. 

Congress in its “wisdom” was concerned that free speech is kinda okay if, as Elon Musk has stated, it represents freedom of speech but not freedom of reach. So free speech is great as long as we have gatekeepers who can make sure that free speech they do not like has limited to no reach. When we have a tool to limit access, there must inevitably be gatekeepers.

Where is the discussion focused today? Not on repeal of Section 230 and trust our common law tradition, but a debate over the “neutral” application of content moderation (whatever that means). Or accusing the surveillance companies of negligence for not sufficiently banning and removing content that Congress empowered them to remove by providing the broad immunity it did. 

The monetization models of these surveillance companies require that they use algorithms and perform surveillance to maximize engagement through enragement. They obviously want to continue preserving their immunity as a surveillance company monetizing their surveillance activities. 

Section 230 has not protected anyone’s free speech. It did not save the internet. Instead it enabled and subsidized the formation of surveillance companies, extended the surveillance state, and repressed free speech. 

As the Supreme Court weighs in on the issue, I believe a question the Justices should ask themselves is whether it’s an abridgment of our free speech protections to extend immunity to companies who do surveillance and remove constitutionally-protected speech? I do not deny the right for a private company to establish its own content moderation policies. But I do challenge the government protecting companies from the moderation decisions they make, and which are a consequence of the surveillance they perform. 

Christopher Cox described the CompuServ model as “anything goes.” Exactly! That is free speech. He compared it to the wild west. Yes! As our Founders intended! It seems clear to me the intention of Section 230 was to provide a valuable incentive for surveillance companies to abridge free speech that the Court had already protected. 

Why do more Americans not see it perverse and antithetical to our founding principles that our government would grant preferences and privileges to those who abridge speech?

With respect to Elon Musk and Twitter, I assert that as a private company Twitter has no free speech obligations. But Elon, freedom of speech does imply freedom of reach. Is that no the complaint about Twitter’s suppression of the Hunter Biden laptop story? It limited reach. Or is Elon’s interpretation of our First Amendment that each person cannot have their speech abridged but that the government can intervene to make sure that no one is permitted to listen? Elon can certainly prevent your reach on Twitter. But if the government abridges your reach, government has abridged your speech!

To preserve free speech on the internet, end the subsidy for surveillance and repeal Section 230.

Jeffrey Wernick

Jeffrey Wernick

Jeffrey Wernick is a private investor and early advocate and acquirer of bitcoin. He frequently lectures at his alma mater, the University of Chicago.

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