U.S. Internet policy politics has shifted.
Congress has learned that any new legal accountability for, or regulation of, Internet platforms likely won’t survive court challenge, unless the new legislation also amends a 1996 law, Section 230, that selectively immunizes Internet platforms from most government legal accountability, and federal and state regulation.
Courts have interpreted Section 230 so broadly that Internet platforms like Facebook, Alphabet-Google, Amazon, Uber, and Airbnb, grew confident that they could operate their businesses largely above the rules and outside the law that applied to everyone else.
The proof of this "Jekyll and Hyde" legal double standard, is that this week Congress had to amend section 230 to narrowly override its sweeping Internet platform immunity powers to legally enable child victims of sex trafficking to seek redress for their harms in court.
Yesterday the Senate passed FOSTA, the “Allow States and Victims to Fight Online Sex Trafficking Act,” with 97% support (97-2). Three weeks ago, the House passed it with 94% support, (388-25). Both passed over the strong opposition of Alphabet-Google and some other members of the Internet Association. President Trump is expected to quickly sign it into law.
The biggest takeaway here, is that Congress is bipartisanly beginning to understand that outdated, out of-control, U.S. Internet industrial policy is the root cause of the many bad social, economic, and political problems that Internet platforms are being blamed for enabling and profiting from.
While today’s Congress is justifiably and reasonably upset with the corporate irresponsibility of Internet platforms, the 1996 Congress blanket-immunized these bad, consumer harming behaviors.
The 1996 Congress effectively prioritized freedom of expression over every other value and priority: national security, public safety, law enforcement, election integrity, equal protection under the law, fairness, due process, consumer safety, privacy and data protection, investor protection, intellectual property protection, etc. Effectively, bits were considered speech and nothing but speech. Today’s Congress is struggling to deal with this massive mess that they have inherited by no fault of their own.
When the 1996 Congress in advance, banned cops from effectively policing a beat because potential bad actors were mass-pardoned in advance, it should be of no surprise that America suffers from a Wild West Internet where consumers and their children, privacy, data, Identity, and property are neither safe nor secure.
Originally, Section 230 was a well-intentioned, bipartisan, industrial policy experiment, that rapidly grew Internet adoption and enabled America to build the best Internet infrastructure in the world. But now it’s unbalanced, asymmetric-accountability has spiraled out-of-control. America is divided by outdated Internet policy.
Some critics of Congress amending Section 230 defend Section 230 as pro-free enterprise and pro-free markets. It is not.
Section 230 is not a true free enterprise provision (despite its hortatory policy language), because in effect and practice, it is a selective, government-sponsored enterprise provision.
That’s because Section 230 selects one and only one industry’s technology, an “interactive computer service,” and then powerfully advantages that technology and industry permanently above all other technologies and industries, by entitling that technology and industry with king-like immunity from liability and accountability for whatever happens on their platform or because of their business model or decisions.
Court interpretation and precedents have transmogrified Section 230 into a real-world Monopoly get-out-of-jail card, because it immunizes only these technology platforms from liability for whatever it does, or does not do, on its platform.
Heads or tails that technology and those platforms are protected by the government, which has entitled only them to capitalize the benefits of their de facto government-sponsored enterprises and socialize most all the costs and harms of their “unfettered” enterprises onto the backs of consumers, taxpayers and other businesses.
Section 230 masquerades as a free market provision because it functions as a perverse form of government regulation, that denies harmed consumers normal redress from those that have harmed, cheated, defrauded, or censored them.
It is a government-favored-market provision. It is akin to the government choosing to use its military, police, currency, or contract and property enforcement power, to lavishly help one chosen industry at the expense of every other industry.
When the government stands on the scales for Internet companies, this Section 230 market intervention badly distorts the free market’s invisible hand of equilibrating supply and demand; cost and price, and risk and reward, because the Government’s Internet industrial policy has chosen Internet platforms to win, and other industries to lose at the non-transparent, unaccountable, algorithmic hand of Internet platforms.
For those who need more proof Section 230 is not free market policy see the evidence here about how Section 230’s asymmetric accountability creates unfair game rules and an unfair playing field that harms consumer welfare, free market forces, and competition.
Conclusion: What’s shifted in the Internet policy political calculus?
1. Now 97% of Senators and 94% of voting U.S. Representatives have found a bipartisan consensus principle around equal accountability, in overwhelmingly agreeing with Americans who overwhelming believe that no one is above rules or outside the law in America.
2. Now for the first time all members of this Congress are aware of Section 230, a special Internet platform, immunity-from-accountability law, that Internet platforms apparently care much more about protecting for themselves, than they care about protecting the sex-trafficked children of others.
3. Now there is an overwhelming, bipartisan, 95% of Congress that has proven unafraid politically to stand up and vote against Alphabet-Google, a top industry priority of the Internet platforms, and the Internet Association.
4. Congress is learning that Section 230 is the linchpin of the Internet platforms unaccountability, so any future attempt to bring accountability to Internet platforms in the future, will again require Congress, to amend, reform, or overturn Section 230.
5. This Section 230 clash is not going away and will only intensify, since there is a growing queue of big Internet platform unaccountability problems that Congress increasingly can’t ignore.
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Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Admnistration. He is President of Precursor LLC, an internetization consultancy specializing in how the Internet affects competition, marets, the economy, and policy, for Fortune 500 companies, some of which are Internet platform competitors. He is also Chairman of etCompetition, a pro-competition e-forum supported by broadband interests. Cleland has testified seven times before the Senate ad House Antitrust Subcommittees on antitrust matters. Overall, eight different congressional subcommittees have sought his expert testimony a total of sixteen times. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.”
Asymmetric Accountability Harms Series:
Part 1: The Internet Association Proves Extreme U.S. Internet Market Concentration [6-15-17]
Part 2: Why US Antitrust Non-Enforcement Produces Online Winner-Take-All Platforms [6-22-17]
Part 3: Why Aren’t Google Amazon & Facebook’s Winner-Take-All Networks Neutral? [7-11-17]
Part 4: How the Google-Facebook Ad Cartel Harms Advertisers, Publishers & Consumers [7-20-17]
Part 5: Why Amazon and Google Are Two Peas from the Same Monopolist Pod [7-25-17]
Part 6: Google-Facebook Ad Cartel’s Collusion Crushing Competition Comprehensively [8-1-17]
Part 7: How the Internet Cartel Won the Internet and The Internet Competition Myth [8-9-17]
Part 8: Debunking Edge Competition Myth Predicate in FCC Title II Broadband Order [8-21-17]
Part 9: The Power of Facebook, Google & Amazon Is an Issue for Left & Right; BuzzFeed Op-Ed[9-7-17]
Part 10: Google Amazon & Facebook’s Section 230 Immunity Destructive Double Standard [9-18-17]
Part 11: Online-Offline Asymmetric Regulation Is Winner-Take-All Government Policy [9-22-17]
Part 12: CDA Section 230’s Asymmetric Accountability Produces Predictable Problems [10-3-17]
Part 13: Asymmetric Absurdity in Communications Law & Regulation [10-12-17]
Part 14: Google’s Government Influence Nixed Competition for Winner-Take All Results[10-25-17]
Part 15: Google Amazon & Facebook are Standard Monopoly Distribution Networks [11-10-17]
Part 16: Net Neutrality’s Masters of Misdirection[11-28-17]
Part 17: America’s Antitrust Enforcement Credibility Crisis – White Paper [12-12-17]
Part 18: The U.S. Internet Isn’t a Free Market or Competitive It’s Industrial Policy [1-4-18]
Part 19: Remedy for the Government-Sanctioned Monopolies: Google Facebook & Amazon [1-17-18]
Part 20: America Needs a Consumer-First Internet Policy, Not Tech-First[1-24-18]
Part 21: How U.S. Internet Policy Sabotages America’s National Security [2-9-18]
Part 22: Google’s Chrome Ad Blocker Shows Why the Ungoverned Shouldn’t Govern Others [2-21-18]
Part 23: The Beginning of the End of America’s Bad “No Rules” Internet Policy [3-2-18]
Part 24: Unregulated Google Facebook Amazon Want Their Competitors Utility Regulated [3-7-18]
Part 25: US Internet Policy’s Anticompetitive Asymmetric Accountability - DOJ Filing [3-13-18]
