The 230 Trap

The biggest illusion around the internet is that lack of regulation brings freedom. It does not. It only cedes the power of regulation to the tech companies, rather than keeping it in the hands of democratic representatives.

The mythology is strong, though. Tech gurus are fond of saying that immunity from responsibility is the heart of how the internet works. Without it, no Wikipedia. No freedom of speech. No innovation. And, surprise surprise, more power to Big Tech.

US legislators were the first to stumble into this trap. When they passed Section 230 of the Communications Decency Act some 23 years ago, they meant to empower intermediaries to tackle illegal content on message boards and chat rooms.  They thought – mistakenly – that shielding intermediaries from responsibility for what users do would turn them into so-called “Good Samaritans.”  The reality turned out to be very different.

The EU’s E-commerce Directive is a bit more balanced. It makes a distinction between passive and active service providers.  That’s not enough for Big Tech, which has urged the US government to export Section 230 to Europe through a trade agreement, giving them “certainty” that they’re free from any possible liability.

EU leaders, meanwhile, worry that they may have already gone too far. They are asking tough questions about the need to revisit rules made long before things like smartphones, social media and fake news.

Even if we wanted the internet to be completely “open” and “free”, do blanket immunity laws like Section 230 bring that? The answer is no. Intermediaries instead intervene when they like. Pressed on hate speech, Cloudflare took offline the infamous anything-goes chat forum 8Chan. The big platforms have banned right-wing-extremist Alex Jones and his Infowars-channel.

Easy to agree with those actions, but this is not legal certainty. Quite the opposite: random responses to outside pressure. In each parliamentary hearing, Zuckerberg promises to hire thousands more moderators to fix whatever the issues. But we can only guess what those moderators actually moderate. Facebook bans emojis that can be used for innuendo, but allows political ads with no restrictions on… lying. Is this what “open” and “free” looks like? Is this freedom of speech?

Freedom of speech is the right to express your own opinion. It’s not the right to distribute other people’s works and expressions against their will. It’s not the right to operate a taxi service without following taxi service rules. It is not the right for a machine to distribute any data without restriction.

Innovation does not happen from lack of government. In fact, sensible government intervention often supports innovation. The internet itself is a good example: 50 years ago, the Americans where ticked that the Soviets beat them to space. So they started pouring money into advanced military research. One thing that came out was the internet. No government, no internet.

Yeah, Wikipedia. We love the convenience, but is it really that neutral? Some entries are more like battlegrounds for fake news bots. And how come Wikipedia blacked out in Italy and Poland, protesting copyright reform? That smells more like activism than unbiased knowledge.

And if Big Tech wouldn’t suffer from changes to Section 230, how come they lobby against every such change?

EU policy-makers should see through the illusion of intermediary immunity. When making law for the digital age, they should not fall into the 230 trap. Instead, approach the internet as any other field, where balanced regulation provides the rights of the individuals and promotes fair competition, institutions protect those rights and oversees those markets, and democratic process runs those institutions. Let’s call it a proven concept.