With recent revelations about the role that Facebook's algorithm may have played in a range of social ills, the Biden administration has been quietly exploring ways to increase oversight without relying on an act of Congress, according to White House and administration officials and allies on Capitol Hill.
The primary target: Section 230, a provision in the U.S. Communications Decency Act that effectively shields websites from facing legal repercussions for what users post.
By seeking change through regulatory action by the Federal Trade Commission, rather than risking legal reform of Section 230 getting bogged down in a legislative quagmire, the White House could clear a potential pathway to regulating social media companies that have long been able to operate without facing repercussions for what posters use their websites to say and do. Such a move could also help Biden live up to a campaign promise to strengthen regulatory oversight of Facebook and other social media giants.
"The president has called on the FTC to adopt rules to address unfair data collection and surveillance practices in his Executive Order on Promoting Competition in the American Economy," a White House official told The Daily Beast. "We are exploring other options as well."
The tipping point may have come in the form of whistleblower Frances Haugen, a former product manager at Facebook's civic integrity department who has disclosed thousands of documents to Congress and media outlets detailing the company's handling of misinformation, its effects on children's mental health, and exemptions for its most high-profile users.
Haugen's claims that Facebook amplified posts and accounts that falsely claimed the 2020 presidential election was stolen ahead of the Jan. 6 attack on the Capitol, combined with continuing misinformation on social media platforms about the COVID-19 pandemic, have been the final nudge that reform advocates need.
"A few years ago, the biggest proponent of Section 230 reform was President Trump," an administration official familiar with the plans told The Daily Beast. "But the current conversation isn't being motivated by petty grievance and a misunderstanding of Section 230 repeal as creating 'neutral platforms'-it's the consequence of platforms running amok."
The 26-word section, written and passed in 1996, gives internet providers and websites-or, in extremely '90s parlance, an "interactive computer service"-immunity from liability for what might be posted by a third party. While the law has since been modified with few carveouts for websites that knowingly facilitate sex trafficking, it has largely remained intact in the quarter century since it was passed, with an increasingly expansive definition of immunity for website owners and moderators.
Judges have historically given wide deference to Section 230 in cases filed against websites and internet service providers over the years in cases ranging from vengeful exes impersonating former partners to terrorists using social media platforms to enable attacks on civilians. Tech companies, emboldened by those decisions, have taken an increasingly expansive view of Section 230's protections, going so far as to argue in court this summer that Facebook founder Mark Zuckerberg was allowed to misrepresent how the company handles content moderation when speaking before Congress.
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That and other excesses on social media platforms that have encouraged teenagers to feel bad about their bodies, encouraged adults not to get vaccinated and encouraged Trump supporters to storm the U.S. Capitol, reform advocates said, make the moment ripe for broadly addressing the rule.
"The great thing about Section 230 issues right now is, there's bipartisan hatred for Big Tech," said Peter Romer-Friedman, an attorney and head of Gupta Wessler PLLC's civil rights and class actions practice. "There clearly are conservatives who want to rein in 230. A lot of the same concerns that liberals have like discrimination based on race and other protected statuses are the same types of concerns that conservatives have about anti-conservative bias on social media."
Biden has had a fractious relationship with social media companies since the early days of his presidential campaign, when his team cautioned in an open letter that Facebook risked becoming "a tool of misinformation that corrodes our democracy" and advocated for the complete revocation of Section 230.
"Not only should we be worrying about the concentration of power, we should be worried about the lack of privacy and them being exempt, which you're not exempt," Biden told The New York Times editorial board in December 2019, noting that the newspaper "can't write something you know to be false and be exempt from being sued. But he can."
"The idea that it's a tech company is that Section 230 should be revoked, immediately should be revoked, number one, for Zuckerberg and other platforms," Biden continued. "It should be revoked. It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy."
During the transition, Biden brought some of Facebook's most high-profile legal opponents into the administration. Kristen Clarke, the assistant attorney general for civil rights at the Department of Justice, has been a longtime critic of the platform's response to election disinformation and discrimination against users via online advertising. In 2019, Clarke wrote an open letter to Zuckerberg warning him that continued failure to address Facebook's problems "may expose Facebook to additional legal liability from individuals, civil rights organizations, state attorneys general, and the federal government."
Vanita Gupta, associate attorney general and and the Justice Department's third-highest ranking official, also criticized the platform while at the helm of the Leadership Conference on Civil and Human Rights, particularly in regards to protecting election integrity in the leadup to the 2020 election.
Romer-Friedman, who has participated with Clarke and Gupta in several cases against social media companies, said that it is "too early to tell whether hiring these progressive champions who are tech critics will bear fruit, especially on Section 230 immunity issues." He also cautioned that administration's deliberative pace on implementing regulatory reform is more a reflection of the issue's complexity than a decision not to prioritize.
"It's a very complicated issue, where many different agencies have a stake and role to play," Romer-Friedman said, in part because so many different existing regulations and enforcement agencies are involved.
There are also First Amendment considerations that need to be folded into any regulatory reform, said Nu Walker, a former Facebook, Twitter and Google employee and currently a partner at communications group Seven Letter.
"Amending Section 230 is politically difficult," Walker said. "Plus, it wouldn't impact the large platforms that lawmakers want to target. Facebook and Google would just spend more money on legal compliance while small platforms like Wikipedia might be out of business."
A more effective strategy, Walker said, would involve government-mandated transparency about platform usage and behavior-similar to the materials released by Haugen.
"Make the platforms provide anonymized data to outside researchers who can analyze and explain it to Congress and the general public," Walker said. "The Constitution protects almost all online misinformation but better-informed research would help us understand it, and force companies to modify their rules and increase enforcement."
There is also room for Congress to act. In February, Sen. Mark Warner (D-VA) introduced the "Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms," or SAFE TECH Act, which would exempt advertisements from Section 230 protections, and would allow users to hold providers accountable in civil court for enabling stalking, harassment and intimidation based on protected class membership.
"Section 230 has provided a 'Get Out of Jail Free' card to the largest platform companies even as their sites are used by scam artists, harassers and violent extremists to cause damage and injury," Warner said at the time. "This bill doesn't interfere with free speech-it's about allowing these platforms to finally be held accountable for harmful, often criminal behavior enabled by their platforms to which they have turned a blind eye for too long."
Asked about the bill's prospects, a White House did not explicitly endorse its passage, but did tell The Daily Beast that the president "has made no secret of the fact that he thinks we need to reform Section 230 to make tech platforms more accountable, as well as his belief that we also need better privacy protections and to strengthen the antitrust laws."
"We are encouraged by the bipartisan and largely unified interest in Congress to tackle these issues," the official said.
But there are signs that the elephant graveyard that is Congress could be outpaced by the judicial system. In April, Supreme Court Justice Clarence Thomas wrote a concurrence in a case involving a First Amendment dispute over President Donald Trump's decision to block critics on Twitter, in which the justice said that Twitter's decision to ban Trump from the platform revealed potential abuses of Section 230, and hinted that "the extent to which that power could lawfully be modified raise interesting and important questions."
But if the Biden administration and the Justice Department see an opening in staking the legal claim that Section 230 has been too broadly applied to protect too many bad actors, they are keeping quiet about it. Neither the White House nor the Justice Department's Office of Legal Policy would comment on whether Justice has filed any statements of interest in federal or state courts conveying the department's official position regarding Section 230.
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