In early April, in the anxious days of mourning after the massacres at two New Zealand mosques, the Australian government passed what it called the Sharing of Abhorrent Violent Material bill. The hastily drafted law called for fines of up to 10 percent of annual revenue or three years of jail time for technology executives whose companies fail to “expeditiously” take down abhorrent content. According to The Guardian, objectionable content would include “videos depicting terrorist acts, murders, attempted murders, torture, rape or kidnap.”
It’s unclear how quickly companies are expected to take down content. Australian politicians have spoken of a “reasonable” timeframe being perhaps an hour after a major event. A similar German law allows for a 24-hour grace period before issuing fines of up to 50 million euro; the European Parliament is currently considering a law that would allow for only an hour. Industry groups fretted that the law was cobbled together too quickly, and could implicate almost any employee of a tech platform. An opposition party promised revisions to the law should it come to power.
Regardless of how Australia’s law is implemented, it could lead to complex legal disputes. What constitutes “abhorrent” speech? And to what extent can national governments exert sovereignty over our communications platforms? Zoom out and you see a liberal democracy struggling with how to respect speech rights while also protecting its citizens from harmful or inciting material promulgated on tech platforms over which they only have partial jurisdiction. How do we apply government protections to environments without borders, entirely controlled by private corporations? The answer isn’t clear, particularly since these companies style themselves as public squares, pseudo-political entities unto themselves with a responsibility to offer opportunities for (some kind of) free expression. What is clear is that we are a long way from being able even to contemplate such a law in the United States.
In the U.S., calls for regulating inciteful or violent content can run headlong into conservatives’ fears of being “deplatformed” or “shadowbanned”—terms for when a company blocks certain users. One person’s efforts to eliminate hate speech is another’s censorship. It doesn’t help that we know very little about the standards and processes that Facebook, Google, and other big tech platforms use to filter content. In the EU, at least, platforms have to publish reports twice a year on their efforts to combat hate speech. Elsewhere, the decision-making process is rather opaque, clues coming only from the occasional leak or a carefully curated tour through a content moderation facility.
The United States has few laws governing social media content. The most prominent and influential is undoubtedly Section 230 of the Communications Decency Act (CDA). Passed in 1996, Section 230 has developed its own mythology and has often been cited as the key legal underpinning for the massive unfettered growth of social media sites and other tech platforms. The law is open to some interpretation, but essentially it does two things: It prevents companies like Facebook and Twitter from being considered publishers (publishers are responsible for all content they publish by individual writers), and it offers a liability shield if companies perform voluntary, good faith efforts to moderate “objectionable” content. Essentially, it immunizes internet companies twice over, as a recent report by the Congressional Research Service noted. If the United States were to adopt an Aussie-style law promising large fines or even jail time for failure to address violent content, legislators would first have to address Section 230.
There is in fact a growing bipartisan push to reform or overturn Section 230, but not always for reasons related to objectionable content. “It’s allowed a lot of these mega-companies to get really big, really rich, and really powerful and to avoid competition. And it has allowed these companies to exert editorial influence without being subject to the usual controls on editorial activity,” Missouri Senator Josh Hawley told The Verge in March.
Anti-monopoly conservatives increasingly skeptical of large social media companies are joined by conservatives—Senator Ted Cruz being one—concerned about “political bias and censorship” at Facebook, Google, and Twitter. Democrats like Nancy Pelosi have also spoken favorably about addressing Section 230. The bipartisan concern, while perhaps founded in differing motivations, speaks to the developing sense of urgency about curbing the power of tech companies.
Regulating so-called Big Tech, however, could be approached many ways, and not necessarily with the large penalties Australia has opted for. Getting rid of the “lawless zone” created by Section 230, David Golumbia, the author of The Politics of Bitcoin, wrote to me in an email, should be the first step in a more comprehensive regulatory structure: Whether an independent agency or a division of an existing one like the Federal Trade Commission, the United States also needs a true information commissioner. “It needs to have real regulatory power,” Golumbia wrote, “including fines, just as the FDA and FTC have. Possibly even the ability to refer for criminal prosecution, and certainly for civil law violations.”
Carrie Goldberg, a lawyer known for representing victims of revenge porn that has been posted online, places more emphasis on finding justice in the courts. “The CDA is not a law that has anything directly to do with speech,” Goldberg wrote in an email. “Rather, it is a law that eliminates individuals’ rights to hold tech companies liable in criminal or civil court for harms that are caused through the use of their product.”
One of her clients, she told me, was a man whose ex-boyfriend posted a fake profile of him on Grindr and encouraged men to come fulfill his supposed rape fantasy. More than 1,000 men showed up over the course of a month, while Grindr said it had no ability to deal with the fake profile. “So we sued using product liability theories,” Goldberg said. “The court threw the case out, saying Grindr was protected by the CDA.”
The incentives for tech companies would be different without the liability shield the CDA offers, she argued. “If Facebook were afraid of being sued, it would do things to stop Russians from spreading fake news and taking over our elections and being sociopaths with our personal data. We would gain a great deal socially.”
Responsible media regulation in the U.S., then, might be less about passing new laws with harsh penalties, as Australia has done, and more about repealing existing legislation that gives tech companies unprecedented freedom from responsibility for the content they host.
“The justice system is where we individuals get justice,” said Goldberg. “We should all be terrified as fuck if the tech industry is outside the reach of our courts.”