A group of academics weighed in on the state of Sec. 230 during the virtual State of the Net conference Tuesday (Jan. 26).

Alan Davidson, senior advisor, at Mozilla, who hosted the panel, said that while a year ago revoking or revising Sec. 230 was a long shot, this year things feel different and that "the stakes are higher and the coalition broader." 

Sec. 230 of the Communications Decency Act provides social media companies immunity from civil liability for most third-party content on their platforms.

Davidson pointed out that President Trump had vetoed the Defense Authorization bill in part because it lacked Sec. 230 repeal. The Senate overrode the veto, but the point was that it had gone from a fairly obscure provision to central to the debate about the power of social media. It has also been the subject of legislation, and likely of more legislation and debate in this Congress. President Joe Biden signaled as a candidate he had issues with Sec. 230. 

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Ellen Goodman, a law professor at Rutgers, said Sec. 230 was a subsection of the bigger issues with social media in general, which was that it had gotten overly powerful, that its business model was based on massive personal data collection and that the platforms acted irresponsibly because of their business model as well as due to political pressure.

She said Sec. 230 had two major issues. One was that it created a moral hazard given that the protection had ballooned beyond its original intent and, two, that all online activity was being treated as free expression worthy of First Amendment protection, rather than distinguishing between speech and conduct.

Olivier Sylvain, professor and academic director of the  Center on Law & Information Policy at Fordham, agreed that social media conduct that was materially contributing to things like housing discrimination via automated decision-making was being romanticized as protected speech.

All the professors on the panel said they had issues with repealing Sec. 230 altogether, but Sylvain suggested he had fewer objections to that than the rest. 

Standing up for Sec. 230 was Eric Goldman, associate dean of research & High Tech Law Institute co-director, Santa Clara University School of Law. Goldman said that it was important to consider how much the section underlays things most everybody loves to do on the internet, which is why repeal should not even be on the table, from social media sites that are getting a lot of criticism these days but still a lot of use, to online shopping to consumer reviews, things that don't exist in an offline world and rely on Sec. 230.

He said even the Zoom call that was the panel's platform was relying on Sec .230. As to reform, which he did not rule out, he cautioned to first identify what problem needed solving, then make sure that reforming 230 is the fix. 

Goodman said she was for reform, not repeal, saying the poster company for not repealing was Yelp!, which would not exist without the protections of 230. She said it reminded her of the discussions about chemical companies in the 1960s. They did a lot of harm and a lot of good. She agreed about addressing the power imbalance, but also said that as a veteran regulatory lawyer she liked having Sec. 230--and more to the point the threat of its repeal--as a cudgel to bring platforms to the table. 

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Genevieve Lakier, assistant professor of Law a the University of Chicago Law School, said she was not a fan of 230 and the power it gave to platforms to make decisions about speech regulation--either taking down or leaving up, without legal liability. She said those decisions were being made without sufficient transparency. But she also said there should be no rush to reform, since that could lead, particularly in the current post-Capitol insurrection climate, to arbitrary takedowns of speech. 

Lakier said another issue with reforms would be if a government body starts deciding which editorial processes are OK and which are not. While reforms might get at the social media power issues that concern her, it could also raise First Amendment issues, which is why she argued for a "slow roll" of any reform.

FCC Commissioner Jessica Rosenworcel, in a passionate keynote speech to the State of the Net annual conference, focused on growing political challenges to internet freedom. Acknowledging the long run of "rosy propositions" about the internet's value, she warned that "this formidable tool can not only bring us together but can divide us, too." She voiced special concern that government-directed internet shutdowns "can stunt the democratic process, threaten human rights, batter economies, and disrupt modern life" - and emphasized that the U.S. President could institute an internet shutdown under current regulations.

Without ever mentioning the incumbent U.S. President by name during her Tuesday, Jan. 28 speech to the annual SOTN conference of policymakers, Rosenworcel's political invective concentrated on what she sees as a potential threat to American free speech similar to actions that have been implemented globally.

"We have discovered what is ugly—that outrage can travel online with a greater velocity than veracity," Rosenworcel said, citing the "terrifying [ways] that this tool for global collaboration can be used to disrupt democracies as surely as it can be used to destabilize dictatorships." She focused on overseas examples, quoting reports that 21 countries shut down the internet 122 times last year.

After a lengthy tale of overseas internet shutdowns, she brought the story to the U.S.

"You might think this is at some distance from what could happen in the United States. But you might want to think again," Rosenworcel said, trying to avoid alarmist rhetoric as she outlined a scenario in which the President could use World War II- era regulations to stifle the web.

She pointed to 1942 revisions of the 1934 Communications Act, known as Section 706.

"Section 706 allows the President to shut down or take control of 'any facility or station for wire communication' if he proclaims 'that there exists a state or threat of war involving the United States,'” she explained noting that wireless communications could be suspended "merely if there is a presidential proclamation of a 'state of public peril' or simply a 'disaster or other national emergency.' There is no requirement in the law for the President to provide any advance notice to Congress."

Rosenworcel acknowledged, "These are .... different days."

"Section 706 has not been directly applied to the internet," she said, but quoted a 2010 Senate report that concluded Section 706 “gives the President the authority to take over wire communications in the United States and, if the President so chooses, shut a network down.”

"If a sitting President wants to shut down the internet or selectively cut off a service, all it takes is an opinion from his Attorney General that Section 706 gives him the authority to do so," she said. Citing current "unspoken norms," Rosenworcel contended "that past practice may no longer be the best guide for future behavior. Norms are being broken all the time in Washington and relying on them to cabin legal interpretation is not the best way to go."

With bold political inference, she said, "We should be straightforward."

"We should acknowledge that internet shutdowns can stunt elections and the democratic process, threaten human rights, batter economies, and disrupt modern life," the Democratic Commissioner said, calling for a "modern assessment of this language" in Section 706, reflecting "what it should mean in the digital age."

"The United States should develop a formal policy on government-directed internet shutdowns, informed by the experience of the State Department, National Telecommunications and Information Administration and Federal Communications Commission," she proposed.

"We need to have this discussion if we are committed to an open internet for all," Rosenworcel concluded. "Because without it our own laws could be contorted to support such outages. Because without it we can expect the number of government-directed internet shutdowns to grow."

Aside from a promise that net neutrality will be the focus of the House Communications Subcommittee's first hearing this year, nary another word was spoken at Tuesday's State of the Net conference about the controversial access issue. 

Indeed, federal and local policy-makers and industry advocates shunned traditional concerns about network infrastructure and telecommunications policy, which had been dominant issues at the 15th annual event of the Internet Education Foundation, with the cooperation of the Congressional Internet Caucus.

Rather, the focus was on the platforms — especially Google and Facebook — which have become gatekeepers for the expanding range of online services and transactions. 

Along with the concerns over platform dominance came an array of calls for strong policies to protect privacy and to quash anticompetitive maneuvers. FCC commissioner Brendan Carr offered predictable cheerleading for 5G (Fifth Generation) wireless services, and demands for tight cybersecurity in the evolving digital ecosystem were woven through the conference. 

House Antitrust chairman David Cicilline (D-R.I.) opened the program with strong words about Google's perceived anti-competitive behavior, both as a gatekeeper and for its buying splurge in which it has gobbled up smaller firms. This "concentration of power" creates "pernicious impacts on a free and diverse press," Cicilline said, especially "in the absence of a competitive marketplace." He cited reports on Google's ability to manipulate traffic on its ad networks as well as with its readers and users. All of this affects "legacy news companies and digital publishers alike," Cicilline said. "The free and open internet ... is incompatible with this trend toward centralization online."

"It's vital that the House Antitrust Subcommittee takes up these matters in a top-to-bottom investigation [to determine] whether use of market power harms the competitive process online," he said. "We cannot have a democracy without a free and diverse press"....one that gives publishers "a level playing field to negotiate with dominant platforms."

Cicilline used the attack on Google as prelude to announcing that he is reintroducing the “Journalism Competition and Preservation Act," which he had submitted last year. The bill would create safe harbor for news publishers to negotiate business arrangements collectively with Google, Facebook and other platforms. Cicilline said his subcommittee's hearings will "build a record to document anti-competitive behavior to develop a deep understanding of these markets in exploring every tool for preventing" abuses by platform operators.

The News Media Alliance (formerly known as the Newspaper Association of America, and prior to that as the American Newspaper Publishers Association) quickly commended Cicilline's plan, calling it an effort toward assuring "fair compensation for use of news content" from publications.

FCC Preps for 5G, FTC Ready to Take on Vertical Integration

Carr opened his presentation praising 5G by noting that, "Some carriers are telling us we already have it" -- a line that drew a bemused, knowing chuckle from the audience. Carr said, "We're now beginning to see" the long-promised convergence of services "in practical ways." He predicted that 5G "will unleash...new waves of innovation."

Much of Carr's speech focused on the "real challenge" from China, which he said has deployed 5G at five times the pace of the U.S., a timely comment in the midst of the Huawei controversy. He stopped short of promising special consideration for U.S. 5G projects, but he cautioned against establishing policy barriers.

"I want to let the private sector compete" without restraints from local government agencies, on topics such as tower deployment, he said. Carr stressed that, "2019 will be the year of 5G," which will trigger "massive infrastructure" construction and "lots of new jobs."

FTC commissioner Rebecca Kelly Slaughter used her time in the spotlight to refute the "prevailing belief" of recent years that vertical mergers are good.

"We have to look skeptically at all the claimed benefits of vertical mergers," she said. Federal review of merger plans should make "parties substantiate the benefits... and we should bring enforcement actions if we believe" actual performance does not match the promises.

Assistant Attorney General Makan Delrahim, who heads the Justice Department's antitrust activities, also acknowledged the need for new ways to evaluate mergers. He cited recent Google acquisitions, especially those involving advertising programs. Delrahim sought to align it with the current Department of Justice evaluation of broadcasting mergers, and how they may affect advertising operations.

Delrahim indicated that future examinations could assess online and broadcast advertising within a local market as direct competitors, despite the platform differences. He said, "New entrants are important" and emphasized that "light regulation" is vital, although, "We have to be very careful" about each. In response to a question about "How did tech get so big?" the antitrust chief replied, "Big isn't necessarily bad" — especially if it creates a product that consumers want, he said.

Delrahim also opened the discussion of privacy, cautioning that his "biggest concern" about privacy legislation is that the legacy companies will be able to shape the discussion and eventual policy-making. Based on his experience with their skills, they could create barriers that will impede start-ups and maintain privacy regulations from which the existing companies will benefit.

Data Privacy: National or State Protections?

Rep. Suzan DelBene (D-Washington), a member of the House Ways and Means Committee and the Internet of Things Caucus and co-chair of the Women's High Tech Caucus, said Congress "has a responsibility" to assure that consumers have a clear understanding of what happens to their data.

Her remarks followed a series of SOTN presentations about the fragmentation of privacy policies, with very strict ones emerging at the state level, such as the California Consumer Privacy Act. Panelists could not agree on whether such rules will put excessive burdens on companies and whether the standardized measures can be enforced. Several speakers urged Federal action lest conflicting state privacy rules create a diametric dilemma for companies that operate in multiple jurisdictions.   

As for the allied matter of cybersecurity, Rep. Jim Langevin (D-R.I.) called for a national framework for assuring the safety of all segments of the network infrastructure, from artificial intelligence to weapons security. Langevin, a member of the House Armed Services Committee, the Cybersecurity, Infrastructure Protection and Innovation Subcommittee and co-chair of the Congressional Cybersecurity Caucus, emphasized the need for training and expanding the cybersecurity work force and for coordinating government/private sector activities.

Eighty different committees and subcommittees on Capitol Hill now have some jurisdiction over cybersecurity, he explained. "As Congress, we will have to move with greater agility, including oversight and reform" to stave off the growing potential attacks.