The coordinated moves by Silicon Valley to silence Donald Trump are having unintended consequences, but consequences that the legions of Big Tech lawyers must have thought through. Setting aside the fact that they took down so many accounts so quickly on Twitter that they must have been working from a list prepared long ago, and setting aside the obvious collusive signaling by the Big Tech oligarchs that bad things might happen to anyone who didn’t follow suit (anyone remember SOPA and GoDaddy?), there are existential issues for these companies regarding Senator Ron Wyden’s singular legislative achievement, Section 230 of the Communications Decency Act.
European Commissioner for Internal Markets Thierry Breton sets out this discussion–can one call a statement of fact an argument?–in an op-ed posted in Politico’s European edition titled Capitol Hill — the 9/11 moment of social media. Although 9/11 was the Internet’s 9/11 moment, I take his point. However, as Mr. Breton makes clear, Europe is proposing legislation in the form of the Digital Services Act that would hold Big Tech accountable way before there’s a riot.
Mr. Breton writes:
The dogma anchored in section 230 — the U.S. legislation that provides social media companies with immunity from civil liability for content posted by their users — has collapsed….
Regardless of whether silencing a standing president was the right thing to do, should that decision be in the hands of a tech company with no democratic legitimacy or oversight? Can these platforms still argue that they have no say over what their users are posting?
While it may be “too soon” to have these clear eyed discussions that Mr. Breton forces us to face up to, it is important to understand his essential point. These are not lemonade stands. Apple, Facebook, Google and Amazon are well known defense contractors. Amazon has suffered during the Trump administration in its quest for a place at the government trough. All of these companies that are participating in crushing their competitor Parler have skin in the Section 230 game and opposing any legislation to roll it back. Any lobbyist who’s being candid with you will acknowledge that stopping legislation to roll back Section 230 is at least a two Tesla job if not a two Gulfstream job with a Vineyard house bonus.
So let’s heed Mr. Breton’s admonishment to focus on what really just happened. They all acknowledged they don’t qualify for Section 230 anymore and Europe intends to hold them accountable. As he says:
These last few days have made it more obvious than ever that we cannot just stand by idly and rely on these platforms’ good will or artful interpretation of the law. We need to set the rules of the game and organize the digital space with clear rights, obligations and safeguards. We need to restore trust in the digital space. It is a matter of survival for our democracies in the 21st century.
Europe is the first continent in the world to initiate a comprehensive reform of our digital space through the Digital Services Act (DSA) and the Digital Markets Act, both of which the European Commission tabled in December. They are both based on one simple yet powerful premise: What is illegal offline should also be illegal online….
The DSA [gives] online platforms clear obligations and responsibilities to comply with these laws, granting public authorities more enforcement powers and ensuring that all users’ fundamental rights are safeguarded.
With the DSA, Europe has made its opening move. Our democratic institutions will work hard and fast to finalize this reform. But the challenges faced by our societies and democracies are global in nature.
.Any guesses on who is fighting the DSA with all guns blazing?