Can, and should, Big Tech be politically neutral when it’s privately owned?
Trump praised the new bill at the White House’s social media summit — a gathering of right-wing figures who claim to be the victims of Silicon Valley’s liberal bias
New York — When Josh Hawley, the freshman US senator from Missouri, introduced a bill last month proposing a major change to one of the foundational laws of the modern internet, he was largely pilloried. Hawley’s idea — to make big tech companies convince the Federal Trace Commission (FTC) they are politically neutral if they want to continue receiving a crucial immunity from legal liability they have enjoyed for the last 20 years — was described as unserious and unworkable. Not a single law maker signed onto the bill as a co-sponsor.
Hawley finally got a major endorsement on Thursday. President Donald Trump praised the bill at the White House’s social media summit — a gathering of right-wing figures who claim to be the victims of Silicon Valley’s liberal bias. The president then announced he was asking large social media companies — which were conspicuously absent from the first meeting — to come to the White House in the coming weeks and hash things out with Hawley, other unnamed legislators and administration officials.
It was a major validation for Hawley, who has positioned himself as the right’s main Silicon Valley antagonist. While he has expressed concerns about the industry’s market power and privacy practices, Hawley has attracted the most attention when focusing on the main preoccupation of Republican tech critics: the supposed liberal bias of social media companies.
“This has risen to the level of abortion, guns and taxes for grassroots Republicans,” said Andy Surabian, a Republican strategist who has worked for Steve Bannon and the White House, and is now Donald Trump Jr’s spokesperson. “The White House holding this summit, and Hawley introducing the bill, those are just reflections of what the Republican base wants on this issue. I think it was really meant to launch the first bullet in the next big tech wars.”
Hawley has effectively created a way to act on the free-form discontent with tech that Trump and others on the right have been articulating with mounting frequency. He’s done so by pulling a law known as Section 230 of the 1996 Communications Decency Act out of the confines of internet legal conferences and directly into the centre of the online culture wars.
There’s a bit of confusion about the role of these platforms. It’s not a public square. These are private companies, and it’s within their right to have community standardsMichael Beckerman, executive director of the Internet Association
Hawley was signaling his intentions even before he took office. Two weeks after unseating Democratic incumbent Claire McCaskill, Hawley posted a Twitter message hinting that Congress should punish the social network if it couldn’t prove it was pursuing “true diversity of political discourse”. The words were a coded reference to Section 230, which exempts internet platforms from political liability for content posted by their users.
This immunity is widely credited with making it possible to run a platform such as Twitter or Facebook without being crushed by libel lawsuits.
Dissatisfaction with Section 230 has been building for several years. Liberals charge that it has allowed tech companies to grow complacent about misinformation and harassment on their platforms. Conservatives often claim — incorrectly — that the immunity was meant to be predicated on political neutrality. The malcontents haven’t coalesced around a solution, in part because the available alternatives are all problematic.
The blowback to Hawley’s bill over the past month illustrated this. Conservative groups such as the American Enterprise Institute and Americans for Prosperity argued that Hawley’s plan would centralise power with unelected bureaucrats; Michigan’s Representative Justin Amash, an Independent, called it a “sweetheart deal for Big Government”. Those, such as Surabian, that were more sympathetic to Hawley’s idea described it as an opening volley, something that its harshest critics dismissed out of hand.
The bill has “no redeeming features; no interesting policy ideas to consider for future proposals; no meritorious conservation starters”, wrote Eric Goldman, a law professor at Santa Clara University’s School of Law, who has been one of Section 230’s most vocal supporters, in an essay last week.
Tech companies seem unsure how to handle this moment. The backlash poses real peril, and the industry has increased its spending on lobbying in Washington, all while offering to adhere to new rules on issues such as privacy. But there’s also a widespread feeling that Washington doesn’t understand tech — a conviction that deepens every time a law maker asks an embarrassingly uninformed question at a public hearing.
Michael Beckerman, executive director of the Internet Association, which represents all the primary targets of the social media summit, said critics such as Hawley risk damaging the economy with policies based on a misunderstanding about how tech works. “There’s a bit of confusion about the role of these platforms. It’s not a public square. These are private companies, and it’s within their right to have community standards.”
Hawley interprets criticism as evidence of Silicon Valley’s influence. “You see it every time I or somebody else makes a proposal — usually it’s me,” he said. “The Google chorus swings into action.” Following an interview, his staff quickly provided a list of right-leaning groups who have criticised his bill and received financial support from tech companies. Six months in Washington has proved to Hawley that the corrupting influence of corporate money in politics, he said, is even worse than he thought.
Hawley said he never wanted to be a politician, but he has a strange biography for a political outsider. A straight-laced graduate of Stanford University and Yale Law School, he’s a former law professor married to a current law professor; the two met when they were both clerking for supreme court chief justice John Roberts.
Hawley began poking at the tech industry in late 2017 as Missouri’s attorney-general, when he opened an anti-trust investigation into Alphabet’s Google. It attracted nationwide media attention just as Hawley’s Senate run was ramping up, but dissipated before having any tangible impact. It’s a pattern that Hawley’s critics say foreshadowed his practices in the Senate.
Hawley said he thought Silicon Valley was doing important work when he spoke with Bloomberg News in early 2018, but his views on tech have coarsened noticeably since then. In an essay in USA Today this May he questioned whether the country would be better off if Facebook disappeared entirely.
Hawley enjoys penning open letters. He’s written to Facebook to question its commitment to privacy, to Apple to suggest it add a ‘do not track’ option to its app store, and to Google, insinuating that shortcomings in its translation software stem from its attempts to cozy up to the Chinese government
In an interview over the July 4 weekend, Hawley pointed to the 50th anniversary of the first Moon landing as a reminder of how unimpressed he is about the current state of American technological innovation. ‘What they’ve delivered are these more refined behaviour ad platform businesses. They’ve not only failed to live up to expectations, but in many ways have been harmful to the country and the economy.” Hawley doesn’t exactly say that what he wanted instead of Twitter was flying cars, but you get the point.
While the bill addressing Section 230 has clear ideological undertones, Hawley has argued that concerns about the tech industry shouldn’t necessarily be partisan. He’s sponsored about a half-dozen bills related to tech, often in co-operation with Democrats, including proposals to create a “do not track” list for online data collection, stronger protections for children online, and restrictions on novel forms of video game-based gambling.
When he isn’t introducing legislation or hammering the tech industry in public hearings, Hawley enjoys penning open letters. He’s written to Facebook to question its commitment to privacy, to Apple to suggest it add a “do not track” option to its app store, and to Google, insinuating that shortcomings in its translation software stem from its attempts to cozy up to the Chinese government.
Hawley’s work on privacy issues specifically have earned him a reputation among Democrats as the rare Republican willing to sign onto legislation pursuing what are seen as broadly held principles. Several people cited his age — at 39 he’s the Senate’s youngest member — as one of his qualifications to speak on tech issues. “It’s great to work with a Republican partner who is thinking deeply about these issues and, in this body especially, who has a young person’s fresh perspective,” said Virginia’s Senator Mark Warner, a Democrat and Hawley’s co-sponsor on a bill imposing transparency requirements on companies that collect personal data.
The prospects for any legislation aren’t great in 2019’s Washington. In such an atmosphere, legislative proposals often serve as a way to reframe the idea of what is possible. Hawley’s bill on Section 230 seems to be doing that. Lindsey Graham suggested at a hearing last week that restricting access to its protections could be used to pressure tech companies. Ted Cruz referred to the law as a subsidy for tech, and said he was interested in re-examining it. If nothing else, Hawley is playing a note that is increasingly resonant in Republican politics.
Industry groups and many academics view these developments with alarm. On Thursday, a group of 50 internet law experts published a list of principles for law makers considering modifying Section 230, an implicit acknowledgement that this is a growing possibility.
Jeff Kosseff, an assistant professor at the US Naval Academy who recently wrote a book about Section 230, said tech companies have seen the law’s protections as justification to ignore legitimate complaints. “Congress, with one vote and a signature from the president, could get rid of all of Section 230,” said Kosseff, who believes it was inevitable that someone like Hawley was going to come along. “That’s what I’ve been trying to beat into their heads. ‘Guys, you have to take this seriously’.”