Time to regulate Facebook, Twitter like the publishers they are

Here is my column that ran in the Washington County Daily News this week.

The New York Post, the newspaper founded by Alexander Hamilton, broke a story last week about Joe Biden’s family. The story was supported by credible evidence and implicated Joe Biden and his son, Hunter, in a long-term scheme to shake down foreign entities for money in exchange for favorable American government action. It is the kind of story that, if true, is the most serious kind of government corruption imaginable — the selling of American foreign policy for cash.

The bombshell story was instantly quashed and hidden by Twitter and Facebook. Both companies actively censored the story, blocked accounts that attempted to share the story, and disabled links under the faux-truistic cover that they were upholding journalistic standards by insisting on stronger sourcing. This is despite a lengthy history of allowing every conspiracy theory and liberal fake news story to propagate unmolested. In choosing to put their digital thumbs on the Biden story, both companies crossed the line from internet platforms to publishers and require a different regulatory treatment.

Twitter and Facebook both benefit from Section 230 of the Communications Decency Act of 1996, which is credited with providing the legal umbrella that allowed the internet to flourish into what it is today. Section 230 simply states, in its entirety, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

While simple, the distinction has massive implications in law. By not being deemed a publisher, internet companies are protected against liability for libel or defamation for what appears on their platforms. Section 230 is an evolution of an ancient English common law practice of “common carriage” or common carrier. The crux of common carriage is that private enterprises who are engaged in something imperative to the common good are granted some special protections by the government in exchange for certain obligations. In the case of internet companies, the free exchange of ideas these platforms facilitate is considered the lifeblood of a free, self-governing society and a common good worthy of such protections.

In the 20th century the common carrier that dominated technology for the better part of 70 years was AT&T. In exchange for a monopoly on long-distance lines and the ability to use eminent domain, AT&T agreed to let the government regulate their rates and, what was critical, to not discriminate against what was said on those lines. This was a stark contrast to the great monopoly of the telegraph, Western Union, which might have helped sway the presidential election of 1876 to Rutherford B. Hayes by secretly providing the Hayes campaign the Democrats’ telegrams and suppressing others. AT&T’s great bargain was to agree to be regulated in exchange for a monopoly.

Section 230 took the grand bargain a step further by providing all of the benefits of legal absolution in exchange for nothing. Under this law, companies like Twitter and Facebook grew up into dominant natural monopolies because their users provided petabytes of content for other users to consume without having to police the content for accuracy or even sanity.

Make no mistake, if you are not paying for it, you are what is being sold. In the case of Twitter and Facebook, their business model is to collect incredible amounts of personal data about their users and sell that data for the purpose of target marketing, research, and whatever other moneymaking purpose they can divine. Their algorithms target people for specialized content and might have already broken the common carrier trust that the public bestowed on them.

In purposefully, actively, and personally deciding to stomp on a negative story about Joe Biden that was published by a reputable newspaper in the midst of a political campaign, Facebook and Twitter have definitively and unmistakably crossed the line from being internet platforms to publishers. As such, the legal protections granted to them under Section 230 must be withdrawn so that they can be regulated like The New York Times, Fox News, MSNBC, and all of the other publishers that filter, edit, and curate the information they provide to their subscribers.

Facebook and Twitter can’t have it both ways. If they want the legal protections provided under Section 230, then they must allow all information to flow freely. If they want to be information gatekeepers, then those protections must be withdrawn so that people have legal remedies against abuse.