WASHINGTON – With Election Day less than a week away, the CEOs of Facebook, Google and Twitter on Tuesday appeared virtually before a Senate panel where lawmakers grilled them over their influence in the election and a once-obscure law that has drawn criticism from Republicans and Democrats.
At the heart of the Senate Commerce Committee hearing was Section 230 of the Communications Decency Act, a short provision in a 1996 law that has been called “the 26 words that created the internet.”
The provision gives tech companies two powerful tools: a “shield” that protects them from liability for content posted on their platforms and a “sword” that allows them to remove any content they find “objectionable,” a definition that gives them broad authority to remove even material a court may consider protected speech. Senators of both parties think it’s time for that to change.
“After 24 years of Section 230 being the law of the land, much has changed,” said Sen. Roger Wicker, R-Miss., the committee chair. “The internet is no longer an emerging technology. The companies before us today are no longer scrappy start-ups operating out of a garage or a dorm room. They are now among the world’s largest corporations, wielding immense power in our economy, culture and public discourse.”
Section 230 has drawn criticism from Democrats and Republicans alike, albeit for different reasons. In recent months, President Donald Trump and former Vice President Joe Biden have called for its repeal, while most senators in Wednesday’s hearing expressed a desire to revise it.
Facebook CEO Mark Zuckerberg summed up the difference of opinion between the parties in his opening statement.
“Democrats often say that we don’t remove enough content, and Republicans often say we remove too much,” Zuckerberg said. “The fact that both sides criticize us doesn’t mean that we’re getting this right, but it does mean that there are real disagreements about where the limits of online speech should be.”
The committee’s GOP members took aim at instances in which the companies have sought to limit the spread of posts by Trump and other conservatives that the platforms have labeled as misinformation. Democrats, led by Washington Sen. Maria Cantwell, argued that Republicans were using the hearing to “work the refs” and pressure the companies to allow misinformation on their platforms around Election Day.
“We wish that this 230 issue would have (come up) in January,” Cantwell said in an interview Monday. “We think that it’s an issue to discuss. We just feel like a lot of politics has been thrown in now, right before the election.”
Cantwell, the committee’s top Democrat, also used the hearing as an opportunity to raise concerns about the threats the companies pose to the local news industry, the subject of a report the committee’s Democratic staff released Tuesday.
Section 230 owes its existence to a 1996 law Congress enacted in response to concerns about online pornography and other content considered “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
A year later, the Supreme Court unanimously struck down the anti-indecency sections of the law on First Amendment grounds, but left Section 230 intact. Margaret O’Mara, a University of Washington historian who specializes in the history of Silicon Valley, said the provision helped foster today’s tech economy but was designed for a different era of the internet.
“Mark Zuckerberg was 11. Google hadn’t been founded yet. Amazon had been in business for a year and people were still mailing in personal checks to pay for their books,” O’Mara said. “It made a lot of sense and was an important provision to put in this bill in 1996, and it did create space for the commercial internet to grow, (but) it’s a very, very different online world now.”
The Google, Twitter and Facebook executives argued that their companies could never have grown into the giants they are today without Section 230 protecting them from lawsuits over content they allowed on – or removed from – their platforms.
Senators contended the companies have abused that power. Sen. Tammy Baldwin, D-Wisc., argued the companies should do more to police harmful content on their platforms, pointing to a Facebook event page used to organize a “call to arms” in Kenosha, Wisconsin, where a 17-year-old militia member shot dead two protesters and wounded another.
“I believe that the tech companies here today need to take more action, not less, to combat misinformation,” Baldwin said. “Including misinformation on the election, misinformation on the COVID-19 pandemic, and misinformation and posts meant to incite violence.”
Republicans, meanwhile, focused on cases in which social media platforms fact-checked, labeled or otherwise tried to slow the spread of what they considered harmful misinformation. In a recent case that drew the GOP’s ire, Twitter blocked links to a questionably sourced New York Post story alleging wrongdoing by Biden and his son, while Facebook limited how often the story would appear for users.
Earlier this year, Twitter began labeling some of Trump’s tweets on mail-in voting and COVID-19 as misleading, providing links to reputable sources of information.
“There is a disparity between the censorship … of conservative and liberal points of view, and it’s an enormous disparity,” Sen. Mike Lee, R-Utah, said. “And when I use the word ‘censor’ here, I mean block content, fact-check, or label content.”
Sen. Jon Tester, a Montana Democrat, rejected the Republicans’ claims, saying the companies’ actions are the result of Trump spreading misinformation, not bias on the part of content moderators.
“The fact is if Joe Biden said some of the crazy and offensive stuff that the president has said, he would get fact-checked in the same way,” Tester said.
Rep. Cathy McMorris Rodgers, R-Wash., has also taken aim at Section 230 in recent weeks. In an interview Tuesday, she said she hopes the House holds its own hearing on the issue soon.
“I believe that they’ve abused their authority under this law and that they are hindering free speech and censoring information, and that action warrants a review of the law,” McMorris Rodgers said. “Censorship, whether it is done by the government or a tech company, is un-American.”
O’Mara said there is no evidence that the social platforms discriminate against users based on political affiliation, but their business models incentivize content that gets users’ attention.
“It’s about the design of these platform and how they are designed to amplify certain types of speech,” she said. “Not necessarily conservative or liberal speech, but speech that elicits engagement and gets people to stay on the platform.
“In fact what these platforms do is they amplify the loudest voices in the room, and certainly in the Trump era, we’ve had some conservative voices, including the voice of the president, that have been among the loudest in the room.”
Sen. John Thune, R-S.D., tried to explain why critics are quick to accuse tech companies of bias, calling for more transparency in their moderation practices.
“Due to the exceptional secrecy with which platforms protect their algorithms and content moderation practices, it’s been impossible to prove one way or another whether political bias exists,” Thune said, “so users are stuck with anecdotal information that frequently seems to confirm their worst fears.”
Zuckerberg and Jack Dorsey, the Twitter CEO, said they supported making their content moderation and appeal processes more transparent.
O’Mara said the political overtones of the hearing, held so close to the election, kept senators from asking important questions about how the tech platforms have crowded out their competition and how their ad-based business models violate individual privacy.
“Whether you’re very conservative, very liberal, or any point in between, you should care a lot about this,” O’Mara said. “I feel like it was a missed opportunity to have a substantive conversation, and if anything, it kind of let these powerful people off the hook.”
Orion Donovan-Smith’s reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper’s managing editor.