July 23, 2019
United States Senate
Washington, DC 20510
It is time for Congress too take action and remove immunity under Section 230 of the Communications Decency Act (“CDA”). The immunity has allowed the big tech companies—the companies that control the information received by the American public—to shield themselves from liability while they abuse their power to censor viewpoints they disagree with. The immunity has left big tech companies no motivation to follow their policies or have a neutral point of view, no motivation to protect the First Amendment right to free speech, no motivation to protect a person’s right not to be defamed. Congress has a responsibility to the American public to remove an immunity that hinders rather than protects their First Amendment right to free speech, to protect them from defamation. And for decades Congress has neglected that responsibility.
The CDA was passed in 1996 to address problems surrounding the regulation of obscene speech on the internet, primarily minors’ access to pornography. Surely it was not Congress’s intention to shield “internet computer servicers” from liability and interpretating the law as if it was has yielded devastating consequences.
In an article published in Berkeley Technology Law Journal in 2002, Paul Ehrlich discusses the legislative record. He notes that the plain text of the immunity provision does not “expressly preclude distributor liability” and that the law was a response to confusion among the courts. (409)
Ehrlich also discusses the impact that immunity will have on defamation law, writing, “While immunity is a good solution to the problem of obscenity generally, the problem of defamation can only be solved either through a return to distributor liability (costly to free speech) or, more preferably, the weakening of anonymity for defamatory posters.” (408)
That was 2002. And the same issues that Ehrlich addressed then, are present today, 2019, seventeen (17) years later, and have magnified, and will continue to magnify if Congress does not take action.
II. Ending Support for Internet Censorship Act
Josh Hawley (R-Mo.) recently introduced a Bill that would remove automatic immunity for big tech companies with respect to political viewpoints. Senator Hawley recognized that “There’s a growing list of evidence that shows big tech companies making editorial decisions to censor viewpoints they disagree with. Even worse, the entire process is shrouded in secrecy because these companies refuse to make their protocols public.”
Hawley’s bill would require big tech companies to prove “by clear and convincing evidence that their algorithms and content-removal practices are politically neutral.” Requiring big tech companies to prove “their algorithms and content-removal practices are politically neutral” hardly seems unreasonable in exchange for an immunity that they have enjoyed for decades, an immunity that is not offered to other media organizations, an immunity that stifles public debate. And as Justice William Brennan wrote in New York Times Co. v. Sullivan in 1964, the First Amendment provides that “debate on public issues … [should be] … uninhibited, robust, and wide-open.”
In the wake of Josh Hawley’s bill, lobbying on behalf of big tech companies is only increasing. According to NBC, “the fervor over Hawley’s bill has revealed just how well powerful companies have laid the foundation in Washington to fight efforts to rein them in.” The same article discusses the “think tanks and other Washington influencers, who help shape discussion about policies that affect those companies.” It is time Congress stop allowing big tech companies shape that discussion about policies because those policies do not only affect those companies, they affect the American public, an American public that is forgotten in the process.
III. Big Tech Companies, Wikipedia
In U.S. Code Section 230(a)(5), Congress found that “Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.” While immunity should be withdrawn for all big tech companies, Google, Facebook, etc. so that they are no longer to abuse their power to censor viewpoints they disagree with, Wikipedia, and big tech companies that recommend it, may be among the most dangerous.
Today, Wikipedia, is the fifth most popular site in the world. A search in Google, the most popular site in the world, will often return Wikipedia as one of the top results for a search conducted in its engine. And the American public relies on Wikipedia for facts. Why shouldn’t they? It is, after all, an encyclopedia. Even Wikipedia’s own entry for “Wikipedia” refers to itself as such. And the website’s entry for “Encyclopedia” states that “encyclopedia articles focus on factual information concerning the subject named in the article’s title.”
If you don’t want to take Wikipedia’s word for it (totally reasonable under the circumstances), the court in Pitale v. Holstine writes, “Wikipedia is an open-source encyclopedia, primarily serving (or at least intending to serve) as a source of factual information rather than as a forum for expressing opinion. Wikipedia strives to be a repository of facts, not opinions.” In a footnote, the court acknowledges Wikipedia’s “neutral point of view” as one of its “three core content policies.”
But is Wikipedia following its stated policies? Does it have a neutral point of view? Do any of the big tech companies? Josh Hawley is aware of evidence that big tech companies “censor viewpoints they disagree with.” And where such censorship exists, there can be no neutrality.
IV. Immunity and Motivation
Shielded by immunity, big tech companies have no motivation to follow their policies or have a neutral point of view. In the case of Wikipedia, editors are free to remove good faith corrections by other users and then “protect” a page so only a handful of editors are able to make edits. The editors may not even be experts on the subjects of the pages they are editing. They have free rein to target individuals, professions, with whom/which, they disagree. They are able to choose sources that are not objective, take quotes from objective sources out of context, use only negative quotes from objective sources, mischaracterize sources to the point that the information leaves a false impression on a massive audience—a massive audience that is relying on the website for factual information. And so on, and so on, and so on, forever… Such editorial decisions render the big tech companies active, not passive, in their role.
Shielded by immunity, big tech companies have no motivation to give an individual harmed by such biased editorial decisions the opportunity to make a correction. They have no motivation to reveal the identities of their anonymous editors. They have no motivation to consider the American public, their right to free speech, their right not to be defamed. These companies are corporations, so are not held to First Amendment standards, and when editorial decisions render the information biased, these companies are hindering, rather than furthering speech.
Shielded by immunity, big tech companies are denying the American public the opportunity to make informed decisions about a subject. Imagine a person exercising his or her right to vote after relying on biased biographies of candidates that hold themselves out to be factual. Imagine a person making a medical decision after relying on an entry that mentions one peer-reviewed point of view, but not a peer-reviewed point of view that contradicts it because the editors, qualified or unqualified, disagreed with the latter study.
If the big tech companies could be sued, perhaps they would find the motivation to consider the rights of the American public. Perhaps they would follow their policies and have a neutral point of view, perhaps they would protect the First Amendment right to free speech, a person’s right not to be defamed.
V. Immunity v. Defamation
Many individuals who have ideas that do not align with the views of a particular big tech company community are suffering irreparable harm to their reputations and financially as a result of this immunity. They are being defamed with no avenue to repair their reputations and recover their losses. The “internet computer services” can hide behind the automatic immunity, anonymous editors, and a lack of transparency as to their role in the publication and republication of the information.
And while there are obstacles to defamation claims such as a statute of limitations and what constitutes republication, there is no such limitation to the amount of time libelous material will spread through big tech companies to their worldwide audience. The harm goes on indefinitely. In essence, the law as interpreted sentences individuals to an electronic gulag in perpituity.
In addition to removing immunity under Section 230 of the CDA, Congress might reconsider insufficient long-arm statutes and statutes of limitations for defamation claims when statements published and republished on the internet are involved.
Perhaps Congress did not understand the issue in 1996, or read Ehrlich’s article in 2002, but in 2019 there is no excuse for elected representatives to be unfamiliar with this issue. With the introduction of his bill, Hawley has informed you. With this letter, we have informed you. It is time for Congress to acknowledge the injustice that has occurred and continues to occur and take action to remove immunity under Section 230. The American public does not want “think tanks and other Washington influencers” shaping policy. They want their elected representatives shaping policy. They want Congress to finally do what it should have done years ago—remove an immunity that does not protect their First Amendment right to free speech, their right not to be defamed. It is time. Who will Congress protect—the big tech companies or the American public?