Regulating the Internet as a Utility

Breitbart reported on 27 July in an article entitled, Big Tech’s Blueprint to Stop a Red Wave in 2022, that,

Republicans think a “red wave” is inevitable in November. But the Democrats still have one big advantage: the ever-tightening grip of Big Tech censorship, which will be used to prevent undecided voters from encountering even the most mainstream conservative news in the runup to the next election. Republicans will have a strong message — but what if voters are prevented from hearing it?

[This sentiment dovetails nicely with my two-part article, Don’t Celebrate Too Soon, here and here.]

Evidence of Big Tech censorship is easy to find. The cited article provides many examples. Whether conglomerates who control traditional media and information flow, the Tech Tyrants who stifle conservative voices, or America haters like Soros who are buying conservative Hispanic radio stations to destroy them, they all have monopolistic control over information. Our federal government is all too willing to extend its increasingly overreaching, tyrannical, and unconstitutional (10^th Amendment) – directly or through regulatory agencies. The feds, however, have done nothing to enforce anti-trust laws and bust up these monopolies. This is mostly because the ruling junta benefits from the corruption of the media.

I am not legal scholar, but it seems to me that the way the Internet platform providers are being regulated has given them monopoly powers to regulate content in a way that is a de facto limitation on free speech. This article provides some discussion of abusive and monopolistic behavior by Internet companies, some background on Section 230 of the Communications Decency Act, and a modest, perhaps naiive, suggestion on a way forward.

Internet platforms like Fascistbook, YouTube, Twitter, and the like have become the way most Americans get their news and information. Frances Haugen, a Fascistbook “whistleblower” recently testified before Congress that the platform (as well as other platforms) intentionally censored the Hunter Biden laptop story to influence the outcome of the 2020 election and that she was part of the team at Fascistbook that did the censoring. Stories about election fraud are routinely silenced. I have had a dozen of my stories labeled as false, misleading, or out-of-context even when those posts cited CDC data. Fascistbook and Twitter censored and labeled as misinformation stories about the Wuhan Lab Leak Hypothesis until it turned out to be true that the COVID virus did leak from the Wuhan lab. Recently Fascistbook cut off all sharing of news and information in Australia, including important government functions. Most recently Fascistbook, YouTube, and Twitter have decided to demonetize and/or censor any discussion of climate change that does not toe the Leftist party line when many climate scientists have recently published statements and books that debunk the hysteria. The cover story for this recent censorship is that some sites objected to ads for books that purport to debunk climate change hysteria on pages with their content. My answer is “Tough!” I don’t like some woke, Leftist claptrap overlayed on a page that I am reading or having to sit through Biden campaign adds while looking for a Thomas Sowell or Larry Elder video!

The President of the United States (President Trump) was permanently banned from Twitter for urging his followers to not become violent on 6 January 2020. Jen Goebels Psaki openly admitted that the Biden junta has conspired to flag troublesome Fascistbook posts for censoring or algorithmically limited the ability to share them. Amazon de-platformed Parler and Web hosting company GoDaddy recently de-platformed a site designed to let people report violations of the Texas abortion law. There are many examples of how “independent fact checkers” are not independent and are advocacy groups that label items they do not like as “false,” “misinformation,” or “missing context.” Just this week, I had a “fact checker” flag a joke/meme that I posted on Fascistbook. But one person’s “misinformation” (e.g., the Wuhan Lab Leak Theory) is another man’s information (the story turned out to be TRUE despite months of being labeled false — and I think the same will occur with ideas that contradict the climate change hysteria that Fascistbook is now censoring).

A quick look through non-partisan news sites will net an overwhelming number of examples of conservative people and organizations being demonetized and/or de-platformed by big tech companies who use their monopolistic power and Leftist agenda to censor free speech. In the meantime, the Taliban used Twitter to plan and execute their lightning takeover of Afghanistan during the cowardly and incompetent retreat by US forces, and “religious” leaders in Iran can actively recruit and direct terrorists on Twitter, Facebook, and YouTube. The hypocrisy is so thick you can cut it with a knife. Yet, Leftists insist the tech tyrants are not targeting conservatives.

The governing statute, as mentioned earlier is Section 230 of the Communications Decency Act, which says, in part,

(1) Treatment of publisher or speaker

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.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph. [my emphasis added]

The consensus is that Section 230 has enabled the Internet and social media platforms to flourish. The problem, in my mind is that the terms “good faith” and “otherwise objectionable” are overly broad and have led to capricious decisions by the tech tyrants that are protected under the law. Again, I am no lawyer, but the context of the term “otherwise objectionable” is important. It is in a list of attributes, like lewd, lascivious, etc. That implies to my non-legal mind that “otherwise objectionable” is meant to be things like the enumerated items. “Otherwise objectionable” does not, or should not, mean political views not in accordance with the party in power, unfettered discussion of alternative views regarding climate change, free discourse on the benefits and risks of masking, shuttering small businesses, vaccines, vaccine mandates, abortion, or religion. Like the Freedom of Information Act, this statute should not be interpreted as carte blanche to censor items that are inconvenient, embarrassing, or do not toe the Leftist party line. See additional discussion of Section 230 at these sites, including Leftist assertions that there is no proof that the tech tyrants disproportionately censor conservative ideas here, here, here, here, and here. I encourage you to read these linked articles.

According to Reuters, Google’s Sundar Pichai, has said that “‘without Section 230, platforms would either over-filter content or not be able to filter content at all’ and has proposed solutions such as developing content policies that are clear and accessible, notifying people when their content is removed and giving them ways to appeal content decisions.” In one sense, Pichai is correct that there is no clear guidance — across all social media platforms — on what content to filter; as a result, this law gives the platforms excessive authority to filter whatever they want. Because Facebook and Twitter have monopoly powers and no accountability, they are effectively controlling the content that people can access.

But neither the government nor private enterprise should be enabled and held blameless for impinging on free speech. Clear and accessible content policies already exist in terms of statutory provisions and judicial precedent on the very limited cases of permissible censoring of free speech (like shouting “fire” in a crowded building or conspiracy to commit a crime).

Section 230 holds them blameless for “harmful” content while giving them uncontrolled power to censor anything they do not like. Section 230 gives a non-governmental agency with monopoly powers the ability to curtail Constitutionally guaranteed freedom of speech without repercussions. What gives the tech tyrants the right to curtail the Bill of Rights? What gives Twitter or Facebook the right to decide what is harmful or misleading content? Section 230.

Free speech means that conspiracy theories, flat worlders, anti-vaxers, racist organizations like BLM, fascists organizations like Antifa, and similar groups can freely share information, misinformation, and wacky theories. That’s protected by the 1^st Amendment. Of course, ten minutes on the internet makes it intuitively clear the vital role of editors in “reputable” media; although, there is very little reputable media left that just presents facts and lets people form their own opinions. (This is what happens when we let our schools teach what to think instead of how to think.) But it is not the role of Fascistbook, Twitter, YouTube, Amazon Web Services, Apple, GoDaddy and other private companies to limit what individuals say.

There are dozens of proposals for how to “fix” Section 230, including scrapping it all together. Let me draw this analogy. Is the phone company (land line or cell) liable for misinformation in a phone conversation? Is the phone company allowed to censor your phone conversations? Is the Post Office responsible for misinformation in letters? Is the Post Office allowed to censor your mail? No.

It is this portion of Section 230 that is objectionable and repugnant: “otherwise objectionable, whether or not such material is constitutionally protected.” This is both overly broad and explicitly gives the right to impinge on constitutionally protected free speech. Can Gmail (Google) begin to censor your Email if it contains ideas that do not toe the Leftist party line?

I argue that the social media providers should not be held liable for ugly content as already described in Section 230. On the other hand, they should have no authority to filter, censor, flag, “fact check,” or downgrade content without explicit user permission. As a user, I already have the ability to silence, block, stop following, or unfriend people and views I do not like. If the platforms’ Gestapo find content they believe is obscene, lewd, lascivious, filthy, excessively violent, harassing, or illegal, they must have the responsibility to report the publisher to law enforcement for investigation. If their filtering misses that content, the platforms should not be held liable. Illegal content will be reported by someone, where it will be adjudicated through the constitutional protections, presumption of innocence, and checks and balances of the legal system. In this sense, the social media platforms would be regulated like a utility.

On the other hand, if they are going to be engaged in clearly biased political activities, in supporting one candidate or party over another, they should be regulated like a Political Action Committee (PAC).

Someone at work recently asserted that in a “wild west” internet of free speech, he might have to tolerate a lot of content he doesn’t want. Fair enough. Fascistbook users, for instance, already can filter content they receive through silencing, blocking, “unfriending,” and “unfollowing.” Also, Fascistbook has the ability to create closed groups, where membership is moderated. Fascistbook users already can create moderated groups, where content is filtered by the groups’ moderators. By joining a particular group, a user agrees to live by the group’s norms, not Zuckerberg’s or Dorsey’s views. These abilities give users the ability to tailor their on-line experience without ceding constitutional protections to the tech tyrants.

 

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