Many of you reading this are on social media, you might even be reading this through social media. Many of you have pages for your business on a social media platform or two. You may have noticed that the tenor of social media has changed in the past few years. People have gotten nastier and have been emboldened to do things sitting behind a keyboard that they would not do in person. These actions and the resulting suspensions and bans have led to some calling for regulation for social media companies and that regulation might here here.

The current environment has given some platforms like Twitter a reputation of being toxic and one to avoid if you are an advertiser. This has changed social media as they have tried to fight back and moderate this content with little success it seems, even admitting to being overzealous in some regards. This has the power to negatively affect your business and because of this environment regulation seems inevitable as it has caught the eye of lawmakers at both the state and federal level.

And Now It May Be Coming Sooner Than Thought

One of the Republican Party’s biggest tech critics, Senator Josh Hawley (R-MO), has introduced legislation that will require companies to prove that they are politically neutral before they receive protections under Section 230 of the Communications Decency Act of 1996. Social media companies are no stranger to Washington as numerous representatives have appeared before Congressional panels to varying degrees of member’s satisfaction. Republican lawmakers have been threatening legislation for over a year and it seems that it is now here.

Hawley introduced the Ending Support for Internet Censorship Act at the end of June. It would require large tech companies (defined as 30 million active US users, 300 million global users or more than $500 million in global annual revenue) to submit to external audits conducted by the FTC to prove that their algorithms and their moderation practices are not politically biased. These audits would be conducted every two years. 

Section 230

Section 230 has given social media companies basic immunity from any prosecution or most legal action. It labels these companies as platforms which means that since they do not curate the content they are not responsible for what a user puts up on their platform. It is a pretty good deal for them and in many ways a fair one but some users argue that they no longer deserve this protection since they have begun censoring political viewpoints, thus moving away from platform status and becoming a publisher, which would open them up to lawsuits.

It was originally intended as a shield to help tech startups grow without the fear of endless lawsuits at a time when the Internet was in its infancy. The Communications Decency Act was also an attempt to regulate obscenity and indecency on the Internet and it faced several legal challenges at the time from free speech advocates before becoming law. 

Social Media Bans

Several high profile social media bans have been in the news in the past year. From high profile media users like Infowars founder Alex Jones to activist Lauren Southern to commentator Paul Joseph Watson to religious leader Louis Farrakhan, they have all been banned and those are just some of the more famous ones. Some have received warnings, some have just been banned outright. It even extends to the companies that they run and the people that share their content, so a post can be taken down if you even share content from them. It is a scary proposition that one company, like Google, can have the power to stifle any content that they want.

These people have been banned for promoting or engaging in violence and hate, which these platforms claim to enforce evenly and without bias. Yet it seems to be enforced selectively, which is part of the reason that representatives of these platforms have been brought before Congress to testify on numerous occasions. It seems that the recent mass shooting in New Zealand put a lot of pressure on social media companies to finally crack down and they did, seemingly on conservative and centrist voices most but not entirely.

Big Tech Does Not Want Regulation

Of course Big Tech is fighting back, despite the calls for regulation. Representatives from those companies have consistently stated that they welcome input on potential regulation and in this case it does not seem that they were not asked for their input to help craft it so their reaction to this potential legislation is understandably hostile. They claim that this regulation would make moderation more difficult and it would open them up to more potential lawsuits, which Hawley disagrees with.

More federal pressure may be coming as several of the biggest tech companies like Google and Facebook have been bringing in numerous legal minds that focus on anti-trust law. Could regulation like this simply be the first step in breaking up the tech giants the way the big monopolies were broken up one century ago?

Will This Pass?

Tech censorship has been a bi-partisan issue and combating it does have bi-partisan support. Since the Republicans control the Senate this bill has a reasonable chance of passing but with a Democrat controlled House it has a much more difficult path, even though members there are leery of Big Tech as well. Of course Big Tech’s lobbyists will be hard at work to stop this legislation and they might very well succeed. 

Critics argue that besides making it more difficult to moderate content (debatable) and opening these companies up for more lawsuits (also debatable) this will also give the government excessive power that they should not be able to wield. This last point is certainly valid as now these companies will need to pass government muster and what is found to be acceptable can change from administration to administration, which will make compliance more difficult.  

Big Tech Has Had Time To Shape Up

Big Tech is being given the choice of being forced to host content that is legal and does not violate their terms of service but may toe the line or face penalties. You can also argue of course that lawmakers have given Big Tech time to shape up and that since they haven’t regulation has always been inevitable. The Internet age may be leaving its Wild West phase of development.

These companies records have not been good. Besides censorship (which for some users is genuinely deserved) they have been guilty of violating user’s privacy, selling user data and damaging public discourse, all while making millions of dollars along the way, which should not earn them the benefit of the doubt in any regard. Regulation like this has been inevitable and probably overdue. Will it pass and will it work is another matter that has yet to be seen.

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