Social media is a wonderful mechanism for fostering misunderstanding between people. This effect is no less true than in the conversation over First Amendment rights and Section 230 - both of which have been invoked in the debate over the role tech companies play in what Americans post and consume on social media platforms.

To help separate legal fact from legal what-some-rando-you-follow-on-Twitter-said, I invited technology lawyer and YDHTY's unofficial legal analyst, Denise Howell, onto this episode of YDHTY.

You can listen to the full episode via the player below, on Apple Podcasts, Spotify, or wherever your bad self gets your podcasts.

Show Notes

In an odd twist of irony, the debate over the power tech companies have to regulate what content is shared on their platform sprung from a piece of legislation designed to regulate what content was shared on tech platforms. The Communications Decency Act of 1996 was originally designed to target the proliferation of criminal and objectionable content - most notably pornography - on the web.

In another twist of irony, the bill was struck down in court on grounds it violated the First Amendment, with Section 230 being the only provision left standing - which immunized tech companies from liability over what third-party content was shared on their platforms.

Since then, amendments have been made to prohibit content related to committing criminal activity, sex trafficking, and terrorism, but tech companies have been given a fairly wide berth to decide what content meets their community standards and what does not. As cited in last week's episode on tech regulation, this has led to angst among some over the censoring of content on political grounds and calls for these companies to be more tightly regulated.

With the federal government moving slow on the issue, state governments have picked up the slack with some 100+ bills either having passed or being proposed in statehouses around the country. They include everything from mandated customer service lines, an appeals process users can follow when content was removed, and special perks for Disney (thanks Florida!) - much of which has either been or is destined to meet the same fate as the original Communications Decency Act.

In this sense, much of these efforts on the part of states is more political theater than anything else.

This being said, the threat of a patchwork of state laws could also serve the purpose of bringing tech companies to the table when it comes to crafting federal legislation. The core of users' angst over tech platforms is the fact they have few alternatives and enacting regulation that would temper how they maintain near-monopolistic control over their respective markets is popular on both sides.

An example is the Augmenting Compatibility and Competition by Enabling Service Switching Act of 2021 - seemingly named exclusively for the anagram ACCESS - which requires tech platforms make it easy for users to access and move their data to other platforms, eliminating their ability to lock in data and making them more accountable to their user base.

The issue of content moderation would still be left untouched, but people might be more inclined to accept this if they felt less beholden to the platforms they use. It would also make it easier for alternative platforms to flourish, giving consumers more choices when it comes to social media.

Given previous efforts by those seeking to regulate what is and isn't said on the internet have merely given tech companies greater power over the matter, this might be their best option

ADDITIONAL RESOURCES

Here are a few resources Denise Recommends for those interested in digging deeper into the subject of tech regulation: 

  • Deeplinks, a blog by the Electronics Frontier Foundation: https://www.eff.org/DEEPLINKS
  • Project DisCo (The Disruptive Competition Project), focused on antitrust issues: https://www.project-disco.org/
  • DEF CON, a worldwide hacker conference with policy tracks: https://defcon.org/
  • TechDirt, offering opinion and policy analysis: https://www.techdirt.com/
  • TechCrunch, focusing more broadly on technology with policy-related news: https://techcrunch.com/
  • The Hill, a more general political site with a section devoted to tech regulation: https://thehill.com/policy/technology
  • The Technology and Marketing Law Blog by Professor Eric Goldman, Denise's favorite resource on Section 230: https://blog.ericgoldman.org/

 
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