If it decides to revise Section 230, the US Congress can (re)define the future of democracy and freedom of expression.

By: Ricardo Israel - 14/10/2024

Several news stories have made headlines around the world. For example, a Brazilian judge closes access to X (formerly Twitter) in that country and has a harsh exchange with Elon Musk, Pavel Durov, the Telegram equivalent, is arrested in France, and Mark Zuckerberg, the owner of Meta (Facebook, others) is forced to publicly apologize to parents of children abused through the platforms, in a US Senate hearing.

Otherwise, it is an issue where we really do not know how these companies will be impacted by Artificial Intelligence.

For now, what is the common element in the cases mentioned? At least one, Section 230 of the Communications Decency Act, passed in 1996 during the Clinton administration and which created a special situation for the still-new Internet, one of open privilege. This legislation sought to regulate its content, when it was seen as a medium that redefined communications throughout the world and which coincided with a historical moment where only advantages were seen, since the criticisms that accompany it today had not yet appeared.

The Internet appeared to be the new “agora” of Greek democracy, the public square where there would be no barriers and everyone could communicate. Of course, today we know more, and just like any other revolutionary technology in history, it mixes good and bad things, which, although in my opinion its advantages predominate, require a more objective and qualified analysis.

There are ideas that seem to be facing their time for scrutiny. This is the case of Section 230, and the only place where it can be reviewed is in the US Congress, and it will probably take place next year in 2025, with American politicians being the only ones with the power to do so.

Section 230, in its original version from 1996, began with just 26 words, and it was those 26 words that gave the Internet, and especially companies and owners, a special status where they could not be taken to court for what was published there, that is, they only obtained advantages, without being held responsible. Today we know that these companies are practically perfect monopolies, they are among the richest in the world and their owners have long been billionaires, who unlike their equivalents in the past (the Rockefellers, Morgans and others) not only defend their interests, but those who have ideas about how to organize society sometimes want to impose them on others, using their fortunes and companies for this, which often leads to misuse.

This is the case with Bill Gates, Elon Musk and others, although there is a difference. Musk is heavily criticised in the world's mainstream press for his political ideas, while Bill Gates is not subject to the same scrutiny.

The 26 words we were referring to stated that “no provider of an interactive service shall be treated as the publisher… of any information provided by another content provider.” This was a period in which the vision of the Internet was idealistic, so in practice, a blank check was given to these companies, which, together with the “neutrality” of the network, did not allow for true scrutiny by state or international authorities, and created an enormous advantage in relation to publishers of books, magazines and newspapers as well as other media such as radio and television, where they are responsible for the content.

Today we know how networks create problems for democracy itself, and how they do not do enough to prevent crimes such as child pornography, the lack of protection for minors, jihadist terrorism, anti-Semitism and others.

Furthermore, by protecting websites and allowing their publishers to not be held responsible for what appears there, it is possible that Facebook or YouTube would not exist as we know them, and, if they were put on equal terms with other media such as radio and TV, which were also once at the forefront of technology, they would have to check many of the user posts before they were made public, so as not to be taken to court.

I am a firm supporter of the Internet, I believe it is a great contribution to humanity, but this type of privilege has always been unfair, since it granted legitimacy to platforms and social networks, which is not as important as the fact that it allowed impunity for crimes committed there.

Until the appearance of the resolutions of Judge De Moraes, a member of the Brazilian Supreme Court, there had been no consequences for the rulings of judges and courts in other countries (Google has them in Europe) for the simple reason that the servers are located in the US and are not covered by the jurisdiction of other nations, in addition to the fact that the law of California, where they are based, protects the servers of these companies.

The cases cited at the beginning of this column and many others show that it is not only a problem of Section 230 and its privileges, but that in some cases it has intersected with testimonies from those who have worked there and who today report knowledge of abuses by executives and owners, and that it is reminiscent of what happened in the past with the protection that cigarette companies provided from the damage they caused.

There is also an academic and public debate about the use of practices that affect freedom of expression and democracy itself; the existence of economic monopolies; polarization, the fight for international dominance between countries, as is present in the arrest in France of the CEO of Telegram, or the attempts in the US to force the sale of Tik-Tok by accusing it of being controlled by the Chinese Communist Party, although so far there is no evidence that they do anything very different from their competition, which is a bit reminiscent of the way in the pandemic, vaccines were disqualified from each other, although, by the way, some are better than their alternatives.

There is manipulation and disinformation, but what is more dangerous is acting on that basis against freedom of expression, the very foundation of a democratic society and public liberties. For its part, with its tremendous influence on electoral behavior and on the current functioning of democracy, social networks give a new meaning to the capacity that has always accompanied technology to do both good and evil, the latter through censorship and cancellation in this mix of the dark side, through power and abuse, which perhaps reached its most dangerous side when in the 2020 presidential campaign the FBI was allowed to censor content in alliance with companies such as Facebook and Twitter, as was recognized in the first case by Zuckerberg in Congress, and by Musk when he bought Twitter and transformed it into X, on the basis of freedom of expression. That was added to the way in which some companies censored, no less than the president of the United States.

And that is an unprecedented power, since previously, the suppressed information had a national and temporal basis, whereas now, when the information from the New York Post about Hunter Biden's computer was suppressed on the networks, beyond the impact it could have had on that disputed election, it was a case of a true disappearance, since by being outside the social networks it could not be accessed from anywhere in the world, nor was there the possibility of remaining forever available to information seekers. And this is unprecedented.

Therefore, everything indicates that this healthy debate will really begin when there is a level playing field between Internet companies and others, whose technology may be advanced or old, but which are at a clear legal disadvantage in relation to the Internet and to companies that communicate through social networks.

And this debate begins with the review of Section 230 in the only place where it can be done, since in Congress those politicians have the power to do so. Since former President Trump had been the person censored, at one point it seemed that this was going to be only an initiative of the Republican representatives and senators, depending on the result of the 2024 elections and who ultimately controlled the two Houses. Added to this were the issues of freedom of expression and technology companies that had agreed with the FBI to leave certain issues out of the political debate. However, in recent months, Democratic representatives concerned about the consequences of misinformation have joined the desire for review, giving the possibility that, always depending on the electoral results of this November 5, the issue will finally have bipartisan treatment.

And one more thing: different states have gone to court. Some are “blue” (Democrats), others are “red” (Republicans), but there are also initiatives that incorporate both political sectors, on issues such as the lack of protection for children and adolescents.

In the case of Facebook, economic authorities claim that it is a monopoly that has “bought and buried” innovative companies. Furthermore, in October 2020, the US government, through the Department of Justice and 11 states, filed a lawsuit against Google (from Alphabet Inc.) for “abusing its market power,” calling it “monopolistic” and seeking to exclude rivals. Let us add that, in the law of power, it is not illegal to be a monopoly, but it is illegal for a dominant company to have such exclusive conduct that it does so to protect or strengthen its market power, which constitutes anti-competitive practices.

When it was filed, it was the largest and most important antitrust lawsuit, which if accepted could have consequences similar to the 1974 lawsuit that led to the breakup of the Bell telecommunications system, and which, if it had not been done, probably would not have allowed cellular telephony to arrive in the 90s, since the investment in fixed networks was gigantic.

And this is a peculiarity of the United States, which has a historical tradition of taking action against monopolies. This is how, in addition to the telephone industry and other examples, previously, in 1911, through a Supreme Court ruling, the oil monopoly held by Standard Oil was broken.

Since the place of debate is Congress, it may also be an opportunity to address the issue of what democracy should do with social media, although it is also acceptable that it reaches the conclusion that it should do nothing, since any legislative “remedy” may be worse from the point of view of freedom of expression. Let us remember that the conduct of business owners and executives and that of various governments was worrying during the pandemic, since opinions that were not liked were censored, when today we know that there was no “science” to support some of these limitations, but rather it was an abuse of power.

In any case, I think that some regulation is necessary for the purposes of democracy, not only because it is a privilege that in practice makes it difficult for them to be brought to court, but also because the power acquired by these large companies is simply too much to be compatible with a healthy democracy. Even more, it is dangerous, since in addition to the excessive power of the money they possess, they have shown that they are willing to use it for personal causes that do not necessarily obey the common good. They seem to be a capitalist equivalent to the power of the Chinese Communist Party hierarchs, demonstrated not only here, but in many “woke” companies, where company resources are used to support ideological or political causes, especially in identity diversity.

The issue of the courts is relevant not only because of the balance that democratic society needs, but also because it confirms something that is more the responsibility of politicians than of judges. It is something old, which has to do with the characteristic of every technological revolution, which is the delay of law in general and of laws in particular, in relation to the effects of technological change, both on society and on people, demonstrated by the antiquity of the laws that are attempted to be made to fit with the monopolistic nature of large technological companies in computing and the Internet, or by using laws from the era before smartphones to accuse the founder and CEO of Telegram of crimes committed by third parties on the platform he manages, which due to its fearsome consequences is a wrong approach, and one that must be applied selectively, since it is not done with anyone else, in addition to being a company known for the way it protects its users' data compared to its competition.

Could the underlying reason be that it is Russian, just as Tik-Tok is Chinese? This is not how the West achieved its greatness, and Telegram is used by the Ukrainian military for its privacy and was once banned in Russia for refusing to share access to passwords.

And what about the case of X and Elon Musk in Brazil? There, the restrictions were only lifted after Musk gave in regarding the payment ordered by Judge Alexandre De Moraes, whom he nevertheless accused of violating the constitution. By the way, the issue here is not an investigation into fake news, but a worrying aroma of curtailment of freedom of expression, accompanied by the controversial career of that judge. The question is whether there was arbitrariness. Was it a healthy concern for democracy or, as it seems to be, abuse of power?, since one of the deviations of democracy is the so-called “republic of judges,” where instead of limiting themselves to applying the law, like activists, the judges seek to create the norm, misusing the democratic ideal, since only legislators are responsible for creating laws.

And in Zuckerberg's case, despite the silence of much of the press, he testified in his appearance before Congress in August of this year, stating that the White House had pressured him to have Facebook "censor" some content about COVID-19, which does not remove responsibility from a man of his power and financial means.

In conclusion, the utopia of thinking that networks were going to produce a kind of equivalent to the “new man” of communism led to the gigantism of privileged and uncontrolled technology companies. Fortunately, this is already on the way back, and if the US Congress decides to solve the problem created by Section 230, it could be a very good opportunity, not only to face the problem of monopolistic effects, but to reduce the conflicts that these companies and social networks have created for the democratic system.

The first problem is how to combat the automatic polarization created by these companies' algorithms, so the solution is to make these platforms responsible for what they do and what they fail to do, allowing them to be taken to court to begin with.

The second is the opportunity that would arise to ask what to do with Artificial Intelligence, and the answer would be in new laws, although ideally, it would be time to also establish protection and guarantees at a constitutional level, given the conduct demonstrated by executives and owners, and the potential of Artificial Intelligence to also stimulate our brain processes.

One of the most important intellectuals of the 20th century, the semiotician Umberto Eco, summed up his opinion of the Internet and social networks with the expression “the invasion of fools” (just as he also said that television promoted the “village idiot”), which I do not share, but there is no doubt that his critical reflection, characteristic of all his work, is, along with other great thinkers of note, the essential type of help to try to address in depth a subject that defines the times in which we live.

@israelzipper

Master and Doctor (PhD) in Political Science (University of Essex), Bachelor of Laws (University of Barcelona), Lawyer (University of Chile), Former presidential candidate (Chile, 2013)

«The opinions published herein are the sole responsibility of its author».