Note: this is post #2 in a multi-part series.
Mark Lemley begins Part 1 of his Internet platform paper with the following observation (p. 305, emphasis added): “Everyone wants [to regulate] tech companies …. But dig a little deeper, and the demands [for regulation] are not just diverse, but often flatly contradictory.” Perhaps the best example of this problem is the issue of “Section 230 Immunity”, a pivotal provision of Internet law enacted by Congress as part of the Communications Decency Act of 1996 and codified at 47 U.S.C. § 230.
In brief, courts have generally held that, with a few well-defined exceptions, big tech companies are not legally liable for the content posted on their platforms under Section 230. As a result, as Professor Lemley correctly notes, Section 230 Immunity has in recent times become the biggest target of regulatory reform. The problem, however, is that the various legislative proposals for amending or even repealing Section 230 are flat out contradictory!
On the one hand, “liberals” want to amend or repeal Section 230 to order to give big tech firms an incentive to weed out fake news and hate speech from their platforms, i.e. to engage in more aggressive content moderation policies. As Lemley puts it (p. 307), “The goal of Democratic section 230 reforms is to encourage platforms to more closely police the content of their sites ….” On the other hand, “conservatives” have the opposite goal: they want to restrain the ability of these platforms to censor speech via their content moderation policies, or in Lemley’s words (p. 308), “Republican proposals would treat the platforms as government actors subject to the First Amendment and liable for removing content unless it was not constitutionally protected.”
In other words, to restate Lemley’s main point (p. 310), “Both parties want to eliminate or restrict section 230 in order to change how platform intermediaries filter content. But they want that change to have diametrically opposed effects.” Alas, Section 230 is not the only example of this problem. Following Lemley’s lead, I will provide additional examples of the problem of contradictory Internet regulation in my next few posts …