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Indemnification for the Big Social Media Platforms: Good or Bad?

If you haven’t been in Facebook or Twitter Jail at least once or have never had a post pulled down for “violating their social guidelines,” you are either 100% happy with everything in your life, someone who never posts anything on any social media site, or you can’t remember any of your passwords! One would think in today’s litigious world in which anyone can sue anyone for anything, most of which never result in a court victory but almost always end with a settlement, Americans would be standing in line with lawsuits in hand. Virtually every day, someone posts some craziness at every social site, lies, innuendos, and even untruths that impact the lives of millions of people who read and see those posts and just “assume” what they see is true. It’s similar to being in a crowd of people with an acquaintance named Jim you may not like, and you scream across the crowd to him, asking, “Hey Jim. Have you ever quit beating your wife?” Jim probably never DID beat his wife. But everyone in that crowd that knew Jim and heard you would automatically accept the inference you made as factual. And that’s just not right.

Social media is a different animal. And when federal laws were made to align with Federal Communication (FCC) broadcast issues, Zuckerberg was still in college, scamming all his buddies back East. Because of that and the misunderstandings of the First Amendment by most lawmakers, the Social Media companies armed with tens of millions of campaign dollars quietly visited the halls of Congress. They set the stage for their universal indemnification for ANY of the content posted on their sites. It didn’t matter if Donnie threatened with a tweet that he was going to gun down his next-door neighbor that night or posted on Facebook that his boss was out every night in drag picking up other guys from work, Congress gave both Twitter and Facebook indemnification for either of Donnie’s posts — regardless of their truth or any outcome of either post. That policy just opened Pandora’s box. And the last decade-plus has seen millions of posts that fall into this category or others that are way below acceptable in the minds of most people.

How did Congress facilitate this? They passed a law. This “covering” for the Social Giants comes from Section 230 of the Communications Decency Act from the 90s. Hey, that’s a lifetime ago in this age of technology. And Google, Facebook, Twitter, Instagram, Snap Chat, and all the others have lived at the trough of complete immunity for themselves, stockholders, and employees for ANYTHING posted on their sites. It wasn’t until they each decided to forge into politics that saw ANY censorship of posts and pictures. No one told the giants to take any such actions. But owners and management decided they had social responsibilities to tackle politics. And grab that world they did.

To no one’s surprise, the mostly Democrat workers that populate the employee lists at these Silicon Valley companies decided to take a Democrat party tilt in their censorship of posts. How could they do that? It certainly seemed to violate the Freedom of Speech guaranteed to us all in the First Amendment. But they had a trick up their sleeves: they are privately owned companies! Therefore, they slide beneath the Constitutional restrictions that prevent censorship of words and writings. And they have had lots of fun!

But, enter Attorney General William Barr and the current Department of Justice.

The Department of Justice is aiming tech’s liability shield with a new set of legislative proposals released Wednesday. The proposed reforms are the latest action aiming to weaken legal protection established through Section 230 of the Communications Decency Act, a 1990s-era law. The statute protects online platforms, such as Facebook, Twitter and Google’s YouTube, from being held liable for content their users post on their sites, and also allows them to moderate content in good faith.

The DOJ’s proposed reforms, which would have to be passed by Congress to go into effect, would limit the broad protections that Section 230 typically provides to the tech industry. Platforms could lose immunity if they facilitate or solicit federal criminal activity, like trafficking illicit drugs. It would also create carve-outs for child exploitation, terrorism, and cyberstalking, holding tech companies accountable for taking action on such content.

The proposal also would make clear that Section 230 protections cannot be used to dispute antitrust claims, a significant statement as the Justice Department is reportedly preparing an antitrust suit against Google for as soon as this summer. Facebook has also disclosed an antitrust investigation by the Federal Trade Commission.

“Changing significantly … the balance of responsibilities and provisions about liability in Section 230 would mean less speech of all kinds appearing online,” said Nick Clegg, Facebook’s vice president of global affairs and communications, in a call with reporters on Wednesday afternoon.

It’s unclear how much support the proposals will gain in Congress. Both Republicans and Democrats have argued that Section 230, which was initially envisioned as a way to protect upstart tech companies from a deluge of lawsuits, now appears outdated as it protects powerful companies worth hundreds of billions of dollars.

But while Democratic concerns have focused more on holding companies accountable for keeping users safe, Republicans have also emphasized alleged censorship of conservative voices. Tech companies have repeatedly denied that they censor political speech, but instances, where they have removed posts in error, have fueled such criticism.

Sen. Mark Warner (D-VA), a former venture capitalist and a frequent critic of Section 230, said in a statement that he is wary of reforms brought by the Trump Administration.

“While I believe reform of this outdated law is needed, I have serious concerns that under the supervision of Attorney General Barr this effort has been politicized and will be used by the Trump Administration to cow platforms into allowing Trump, dark money groups, and right-wing militias to continue to exploit their tools to sow disinformation, engage in targeted harassment, and suppress voter participation,” Warner said.

Earlier on Wednesday, Sen. Josh Hawley (R-MO), another leading critic of Big Tech and Section 230, introduced a new bill that would require platforms to promise to act in good faith in their terms of service. That would open tech companies up to potential lawsuits from users claiming breaches of contract.

Last month, President Donald Trump signed an executive order instructing the Federal Communications Commission to write rules regulating how social media companies can remove content from their sites while maintaining Section 230 immunity, and encouraging the Federal Trade Commission to take action against companies engaging in “deceptive” acts of communication.

At the time, Attorney General Bill Barr indicated the DOJ would seek to sue social media companies and said Section 230 “had been stretched way beyond its original intention.” Barr held a forum at the DOJ earlier this year, inviting experts to weigh in on potential reform of the law. He told a gathering of the National Association of Attorneys General in December that the department was “studying Section 230 and its scope.”

A White House spokesperson said in a statement that “President Trump is pleased to see the department following through” on legislation modeled after the executive order.

Without legislative reform, little is likely to change. Courts have consistently upheld Section 230 protections under current law. Bills aiming to amend the law have already drawn tremendous pushback from the tech industry, which claims that cracking down on Section 230 will ultimately stifle speech since platforms will have to remove any content that might leave them open to legal repercussions.

The tech industry has also pointed out that Section 230 already allows tech companies to be held criminally liable for illegal activity. But the DOJ’s proposal would allow victims of online scams or child exploitation, for example, to pursue civil action against a platform if they believe the company had knowledge of the illegal activity and did not take steps to remove it.

Congress did successfully introduce reform to Section 230 in 2018 with the passage of FOSTA-SESTA. The pair of bills from the House and Senate aimed to crack down on online sex trafficking by creating a carve-out to Section 230 immunity for ads promoting sex work. While the bills gained broad support in Congress at the time, they have been criticized by sex worker advocates for making their livelihood less safe by removing websites where they would vet potential clients.


So what is the right way to go here? In my opinion, Congress should look around the world of business in this Capitalistic society. The founders of these tech giants rolled the dice, created start-up struggling companies by borrowing money, selling stock, putting what little money they had personally to get things going in their pursuit of the American dream. Each of them knocked home runs. They and their stockholders have billions of dollars in ownership equity, most of whom at the beginning invested virtually nothing compared to their worth today.

In the rest of the business world, there is a risk that goes along with reward. Congress gave the tech companies the green light to create a place for everyone on planet Earth to vent, say anything, represent anything, and even create and publish scams that have cost unwitting Americans billions of dollars through the year. Yes, law enforcement agencies have, in some cases, been able to find and prosecute some of these wrongdoers. But shouldn’t these companies like every other company in the U.S. bear some responsibility for their allowing anyone to say anything without those people or their content being investigated in any way for accuracy and truthfulness? John Smith’s Corporation is held liable to that principle. Why should Google, Facebook, and Twitter not bear the same responsibilities?

I’ll just offer a guess: maybe these companies have grown too large, have spread too wide, and while doing so have used their power and money to pushback the responsibility to lawmakers that supposedly watch over all of us to prevent con artists from scamming us.

Additionally, the Censors for these private companies don’t neglect to fulfill their partisan political agendas by grabbing posts and tweets of many who are from some other political ilk with which the techies do not agree and delete them, post warnings with those they let be published, or just simply put the poster in jail, restricting ANY posting for some arbitrary period of time. They can do it because they’re private entities.

The bottom line is this: “those who own all the gold are the ones that make all the rules.”

Throw Apple and Microsoft into the bunch (although neither is a social media monster), and the collective value of them together is about $4 Trillion.

I’d say that if they don’t own ALL the gold, they certainly own MOST of the gold!


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