What Should Be Done to Curb Big Tech?

by Bari Weiss

Do your eyes gloss over when you see the words “Section 230 of the Communications Decency Act”? Mine do.
 
Yet the subject of Big Tech’s might — Should Facebook have the power to ban a president? Should Amazon have the power to ban the sale of a controversial book? Should Twitter have the power to permanently bar a user over a single tweet? And if not, what should the government be doing about it? — is both fascinating and incredibly important.
 
I don’t think there is a group left in America who is happy about the power that companies like Facebook and Twitter and Google have arrogated to themselves. According to a recent poll from Vox and Data for Progress, 59% of Democrats and 70% of Republicans think Big Tech’s economic power is a problem. It’s hard to think of another issue with that kind of bipartisan consensus.
 
The nature of your anger, of course, depends on where you sit. (Twitter’s decision to ban Trump in January found 87% approval from Democrats and a mere 28% of Republicans in the same poll.) But the point is that this subject touches everyone.
 
So why is so much of the writing about tech so confusing? One of the reasons it confuses, I think, is that the loudest “progressive” and “conservative” arguments are the opposite of what you’d imagine.
 
Progressives are supposed to be against corporate power. And yet on this subject, they are the ones pushing for more of it. They are enraged that these companies don’t crack down harder on “disinformation,” arguing that the Zuckerbergs and Dorseys of the world put profit above principle when they allow groups like QAnon to run wild on their platforms. Sure, President Trump was banned, but only after he lost the election. Why didn’t it happen earlier? Private companies are not hamstrung by the First Amendment, so why do they hesitate to ban dangerous people whose online words lead to real-world violence?
 

Conservatives are supposed to be for small government and allergic to sweeping intervention. And yet some of the country’s most prominent Republicans find themselves arguing against free enterprise. The crux of their argument, pushed most passionately by Senator Josh Hawley of Missouri, goes like this: The law is handing Big Tech companies a ridiculous and unfair advantage. Section 230 grants companies like Twitter protection from the kind of legal liability that makes a traditional publisher, like a newspaper, vulnerable. Why should tech companies have that privilege, given that they obviously make editorial decisions? Fairness would begin with a repeal of Section 230.
 
I’m not a person typically accused of being indecisive. But about this issue I feel genuinely torn.
 
One part of me says: Government should stay the hell away from private companies. Another part of me, maybe the more passionate part, argues back: Yeah, but Google seems much more like a public road than a private club.
 
The case for the former — government, stay out — has been made powerfully by former Michigan congressman Justin Amash and the libertarians of Reason Magazine. Their argument is the classic one: the solution for bad speech is more speech, not censorship or regulation. If you want a sense of what it would look like to get the government involved in tech, well, just pay a visit to the DMV. Or watch Lily Tomlin’s classic SNL sketch about the phone company: “We don’t care. We don’t have to. We’re the phone company.”
 
But others, most notably NYU law professor Richard Epstein, have made a strong case for the latter. Epstein has argued that these internet behemoths need to be understood as public utilities or common carriers. Just as a railroad can’t refuse to transport a person because they believe the Earth is flat, or a phone company can’t drop a call if the person is talking about Pizzagate, neither should online monopolies have the power to do so.
 
It’s a provocative and compelling argument that turns, of course, on whether these companies are, in fact, monopolistic. Those making it would point to some basic numbers. Among them: When Google’s Search engine accounts for 90% of market share can anyone convincingly argue that DuckDuckGo is a real competitor? If Amazon, which has an 80% market share in digital books, blocks the sale of your ebook, do you really have a plausible alternative method of distribution?
 
The Epstein argument seems to have gotten a powerful boost earlier this week from Justice Clarence Thomas.
 
In President Joe Biden v. Knight First Amendment Institute at Columbia University, handed down on Monday, the Supreme Court tossed out a lower court ruling which held that, in blocking people on Twitter, President Trump violated their First Amendment rights. The case doesn’t matter: Trump’s no longer president, so the whole thing is moot. What matters is the concurrence written by Thomas, which laid out a roadmap for possible government regulation of companies like Google, Facebook and Twitter.
 
The thrust of Thomas’s argument:

Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.

And more:

It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.

It is worth reading the whole thing. Justice Thomas clearly wants to see a case on this.
 
David Sacks, a venture capitalist with a consistently insightful Twitter account, thinks that would be a good thing, not least because the current consensus position among conservatives is misguided.
 
Republicans like Hawley and Ted Cruz are understandably angry about the status quo, but they’ve latched onto the wrong remedy, Sacks says. “Conservative demands to repeal 230 are basically a rage tweet. It wouldn’t stop Big Tech censorship, it would make it worse,” he told me in a conversation this week. “Ending Section 230 would only make companies like Facebook and Google censor more because more liability would make them even more risk-averse about the speech they allow on their platforms. In the meantime, it would also hurt small, innovative tech companies who would be vulnerable to frivolous lawsuits.”
 
The Epstein position, Sacks thinks, has it right. “Why try to incentivize good behavior by threatening to punish Big Tech? Just require it. That’s what the common carrier solution does.”
 
I think Sacks’s view of the big picture here is quite convincing:
 
“When speech got digitized, the town square got privatized and the First Amendment got euthanized. If you can’t speak online — or if your ability to speak online is controlled by a tiny handful of companies with no due process  — how do you really have a free speech right in this country any more?” he said. “Imposing a common carrier obligation on Big Tech would prevent these corporations from doing what they are doing now: discriminating on the basis of creed.”

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