Six days before the Presidential election, the CEOs of Facebook, Google and Twitter will testify before the US Congress on a range of “bad behaviour” issues related to moderation of content on social media platforms.
Three months after a marathon 5-hour antitrust hearing, featuring the heads of Amazon, Apple, Google and Facebook in July, the Senate Commerce Committee has now summoned Facebook’s Mark Zuckerberg, Google’s Sundar Pichai and Twitter’s Jack Dorsey in what has shaped up as the second major grilling of Big Tech in 2020.
The hearing will focus on Section 230 of the Communications Decency Act, a legal shield that protects intermediaries like social media platforms from legal liability for the content created or posted by users.
Expect a heated and volatile grilling once again on Wednesday evening as both, Republican and Democrat members on the Committee will be questioning the CEOs on topics ranging from online censorship of right-wing content, the propogation of misinformation, content moderation policies, data privacy and media consolidation.
The mood of the Senate Commerce Committee, chaired by a Republican senator, can be gauged from the title of the hearing: “Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?”
The hearing has important implications for India as well. The Centre, too, has been planning to modify India’s equivalent of ‘Section 230’, i.e., Section 79 of the Information Technology Act (2000), in order to force greater accountability among big tech platforms in the country.
What Is Section 230? Why Is It Such a Big Deal?
Section 230 says that "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" (47 U.S.C. § 230).
“In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do,” Electronic Frontier Foundation explains.
So, if a user posts something controversial on Facebook or in the comments section of YouTube, the platforms cannot be held liable for what an individual publishes.
With US Elections Coming Up, How Political Is the Issue?
Section 230 has emerged as an explosive political and legal issue since the US Presidential Election in 2016 and has intensified further since Donald Trump assumed presidency.
The legislation, which provides Internet companies immunity from lawsuits for posts, has seen growing outcry from Republican politicians who want it to be applied narrowly. President Trump himself has, on several occasions, lashed out against social media platforms for censoring his posts and tweets.
A number of Trump’s posts have been restricted or hidden by Facebook and Twitter, as they were found to be promoting misinformation in one case and violence in another. Trump’s tweets on a wide range of topics, including COVID-19, ballot fraud allegations and Black Lives Matter protests, has seen Twitter adding warning labels about the nature of the content.
Needless to say, the President hasn’t taken to this kindly.
“REPEAL SECTION 230”, Trump had tweeted on 6 October. This was after both, Facebook and Twitter, removed his post claiming that the seasonal flu is more deadly than the coronavirus.
“For too long, social media platforms have hidden behind Section 230 protections to censor content that deviates from their beliefs,” Roger Wicker, chairperson of the Senate Commerce Committee said in an official statement on 20 October.
Wicker, who is a Rebulican Senator from the southern state of Mississippi, added, “These practices should not receive special protections in our society where freedom of speech is at the core of our nation’s values.”
What Questions Can the CEOs Expect?
Surprisingly, the decision to subpoena the CEOs was unanimous in the Committee, with ranking Democrat on the Committee also joining in the vote after initial refusal.
However, Republican and Demcorat members of the Committee are expected to grill Zuckerberg, Pichai and Dorsey on related but separate issues.
What the Republicans are angry about:
- Censorship of conservative speech on social media platforms.
- They feel Section 230 has been interpreted far wider than it is meant to be. Thereby giving Internet companies too much power over moderating content.
- Inability to penalise companies for their content moderation practices. Republican lawmakers have come up with alternate bills that are aimed to replacing the provisions of section 230.
What the Democrats are angry about:
- Allowing misinformation to propagate widely on platforms, especially Facebook which has a policy of not fact checking political speech.
- Lack of accountability among Big Tech companies for allowing toxic content, including potential hate speech posts that could affect the elections, to circulate on social media.
Why Is the US Supreme Court Involved in Section 230?
Earlier in October, the US Supreme Court denied a request to clarify the meaning and interpret Section 230 of the Communication Decency Act (1996).
However, Justice Clarence Thomas wrote separately that the courts’ dominant interpretation have been overboard and that Internet companies have been granted far more immunity than the law requires.
He added that the Supreme Court should re-examine this decision at a later time when a better case presents itself.
Separately, Ajit Pai, Chair of the US Communications Regulator, the Federal Communications Commission (FCC), on 15 October, claimed that he had the legal authority to interpret Section 230 and intended to clarify its meaning.
Pai said in a statement, “As elected officials consider whether to change the law, the question remains: What does Section 230 currently mean?”
“Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230,” Pai added.
How Big an Issue Is This in India?
The issue of safe harbour to Internet platforms from legal liability for user generated content has also emerged as a contentious issue in India over the last couple of years.
In fact, in India as well, the Centre has signaled its intention of modifying Section 79 of the IT Act, which serves as an equivalent of Section 230.
The Section states, “Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.”
However, the section only provides conditional immunity or safe harbour protection to Internet companies in India. Under Section 79 (2) (c), there is a due diligence requirement, which the platforms have to carry out in order to be protected against liability for the content posted by users.
On 24 December 2018, the Ministry of Electronics and IT (MeitY), issued the The Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018 (“the Draft Rules”).
These proposed amendments, drafted without any prior consultation with the public, propose that messaging apps, social networks, search engines, internet service providers, cyber cafes among others follow a content policing and filtering system.
Several provisions of the proposed amendments have been controversial, particularly Rule 3(5). The requirement of “tracing out of such originator of information on its platform” has been seen as an attack on the privacy of users by requiring encryption to be broken by messaging platforms such as WhatsApp.
In the absence of any substantial parliamentary or judicial oversight on surveillance, this could pressurise companies into falling in line, leading to greater policing of user content.
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