Testimony of TechFreedom Berin Szóka1 Platform Responsibility & Section 230 Filtering Practices of Social Media Platforms: Hearing Before the House Committee on the Judiciary Thursday April 26, 2018 10:00 a.m. Rayburn House Office Building Room 2141 1 Berin Szóka is President of TechFreedom, a nonprofit, nonpartisan technology policy think tank. He can be reached at [email protected]. Ashkhen Kazaryan, a Legal and Research Fellow at TechFreedom, as- sisted with the preparation of this testimony. She can be reached at [email protected]. Table of Contents I. Introduction ..................................................................................................................................................... 2 II. Law: What Congress Intended in Section 230 .................................................................................... 4 Mis-Reading the Text & Legislative History of Section 230 ................................................... 4 What Section 230 Immunity Actually Depends On .................................................................... 6 1. Section 230 Does Not Protect Websites Responsible for the “Development” of Content ................................................................................................................... 6 2. Political Bias Alone Will Not Cause a Website to Lose Its Section 230(c)(2)(A) Immunity for “Good Faith” Content Moderation ............................................ 8 III. Policy: What Should Platforms Be Responsible For? .................................................................... 10 A Brief History of the Fairness Doctrine ..................................................................................... 10 1. How the Fairness Doctrine Was Repealed .......................................................................... 12 2. How the Fairness Doctrine Backfired — And Why It Was Repealed ....................... 13 The Practical Effect of Amending Section 230.......................................................................... 14 1. The Fairness Doctrine Is Inherently Arbitrary, as Companies Will Never Know What Is “Controversial” Until After the Fact. ............................................................... 15 2. Any Fairness Doctrine Will Be Subject to Political Manipulation. ............................. 16 3. Small Companies and Startups Will Be Disadvantaged and Incumbents Like Facebook Will Be Protected from Competition. ............................................................. 16 IV. Constitutional Considerations ............................................................................................................... 17 The First Amendment Bars Imposing the Fairness Doctrine on the Internet .............. 17 Social Media Companies Are Not State Actors. ........................................................................ 19 Government May Not Require Speakers to Give Up Their First Amendment Rights in Exchange for a Benefit, Including Section 230 Immunity. ....................................... 21 V. Congress Botched the Recent Amendment of Section 230 (SESTA/FOSTA) ...................... 23 VI. A Word about “Net Neutrality” in Relation to “Platform Neutrality” ..................................... 24 VII. A Positive Agenda: Areas for Thoughtful Discussion .................................................................... 27 VIII. Conclusion .............................................................................................................................................. 28 1 I. Introduction If one law has made today’s Internet possible, it is Section 230 of the Communications De- cency Act of 1996 (“Section 230”).2 Drafted by Rep. Chris Cox (R-CA) and Sen. Ron Wyden (D-OR), that law ensured that websites would not be held liable for content created by their users except in very limited circumstances. Without that law, social media sites that allow users to post content of their own creation would never have gotten off the ground, given the impossibility of monitoring user content at the scale at which such sites operate today. Yet, in a recent hearing featuring Facebook CEO Mark Zuckerberg, Sen. Ted Cruz (R-TX) ar- gued that Congress intended Section 230 to apply only to “neutral public platforms,” asking Zuckerberg: It’s just a simple question. The predicate for Section 230 immunity under the CDA is that you’re a neutral public forum. Do you consider yourself a neutral public forum, or are you engaged in political speech, which is your right under the First Amendment?”3 Cruz also asked, “Are you a First Amendment speaker expressing your views, or are you a neutral public forum allowing everyone to speak?”4 Sen. Lindsay Graham (R-SC) took up the same message after the hearing: “[Website operators] enjoy liability protections be- cause they’re neutral platforms. At the end of the day, we’ve got to prove to the American people that these platforms are neutral.”5 Politico reports that Sen. Graham has previously proposed a task force made up of members of the Senate Commerce and Judiciary commit- tees to investigate this issue and make concrete proposals.6 These Senators are dead wrong about how Section 230 works, and more important, about the wisdom of requiring such neutrality. The idea that government should police the “neu- trality” of websites is, in effect, a Fairness Doctrine for the Internet. It is ironic that such a proposal should come from any Republican, especially one so proudly “conservative” as 2 47 U.S.C. § 230. 3 Facebook, Social Media Privacy, and the Use and Abuse of Data: J. Hearing of S. Comm. on the Judiciary and S. Comm. on Commerce, Science, and Transp., 115th Cong. (2018) (statement of Sen. Ted Cruz, member, S. Comm. on Commerce, Science, and Transp.), available at http://www.cruz.senate.gov/?p=video&id=3715. 4 Id. 5 Li Zhou, Morning Tech: Stephenson Goes after DOJ Arguments, POLITICO (Apr. 20, 2018), https://www.politico.com/newsletters/morning-tech/2018/04/20/stephenson-goes-after-doj-arguments- 178514. 6 Elena Schor, Graham seeks 9/11-style commission on social media vulnerabilities, POLITICO (Nov. 2, 2017), https://www.politico.com/story/2017/11/02/social-media-commission-lindsey-graham-244466. 2 Cruz, given the intensity of opposition by Republicans to the Fairness Doctrine for genera- tions for stifling conservative voices on radio and television. Indeed, it was President Reagan whose FCC finally abolished the Fairness Doctrine and Reagan himself who vetoed Democratic legislation to revive the doctrine. Opposition to reinstatement of the Fairness Doctrine has been in every GOP platform since 2008.7 In 2012, the GOP platform added this: “We insist that there should be no regulation of political speech on the Internet.”8 In 2016, five years after the FCC, under a chairman ap- pointed by President Obama took the last step in repealing the Fairness Doctrine (formally deleting the rule that had gone unenforced since 1987), the GOP Platform still (strangely) called “for an end to the so-called Fairness Doctrine,” and expressed “support [for] free- market approaches to free speech unregulated by government.”9 In 2009, thirty-one Re- publican senators co-sponsored Sen. Jim DeMint’s (R-SC) “Broadcaster Fairness Act of 2009,” a one paragraph bill that would have barred the FCC from resurrecting the Fairness Doctrine.10 Among these co-sponsors was Sen. Lindsay Graham (R-SC) — and it is difficult to imagine that Sen. Cruz would not have joined him had he been in the Senate at the time. Why conservatives would suddenly embrace the Fairness Doctrine after decades of oppos- ing it is simply baffling. Conservative talk radio was impossible before the Reagan FCC re- pealed the Fairness Doctrine, for example. The Fairness Doctrine suppressed heterodox viewpoints and enforced a bland orthodoxy in media. It would do the same for the Internet. Concerns about Facebook’s potential slant are best addressed through other measures, starting with transparency and user empowerment. Ultimately, the best check on Face- book’s power today is the threat of a new Facebook disrupting the company’s dominance — just as many younger Internet users abandoned the site first for Instagram and then for Snapchat. Regulators should avoid creating vague legal liability, not least because, while it might be manageable for a company as large and well-resourced as Facebook, which has 7 Platform of the Republican Party (2008), available at http://www.presidency.ucsb.edu/ws/index.php?pid=78545 (We support freedom of speech and freedom of the press and oppose attempts to violate or weaken those rights, such as reinstatement of the so-called Fair- ness Doctrine.); 2012 GOP Platform (we oppose governmental censorship of speech through the so-called Fairness Doctrine or by government enforcement of speech codes, free speech zones, or other forms of "polit- ical correctness" on campus.) 8 Les Brown, Reported Political Use of Radio Fairness Doctrine Under Kennedy and Johnson Is Causing Concern, N.Y. TIMES, Mar. 31, 1975, at 50. (https://www.nytimes.com/1975/03/31/archives/reported-political-use-of- radio-fairness-doctrine-under-kennedy-and.html) 9 Platform of the Republican Party, 12, (2016), available at https://prod-cdn- static.gop.com/media/documents/DRAFT_12_FINAL[1]-ben_1468872234.pdf 10 Broadcaster Freedom Act of 2009, S. 34, 111th Cong. (2009) (https://www.congress.gov/bill/111th- congress/senate-bill/34/cosponsors). 3 thousands of employees working just in content moderation,11 it will be fatal to the startups seeking to become the next Facebook.12 Finally, imposing the Fairness Doctrine on the Internet would be grossly unconstitutional, whether enforced through statutory mandate or as a condition of eligibility for immunity under a revised version of Section 230. The original Fairness Doctrine survived First Amendment review solely because the Supreme Court singled out broadcast media for di- minished First Amendment protection. But the Court has repeatedly declared that the In- ternet, including social media, deserve the full protection of the First Amendment. II. Law: What Congress Intended in Section 230 Sens. Cruz and Graham’s interpretation of Section 230 is diametrically opposed to the pur- pose of the law, which was to encourage websites to take down content as they see fit. Mis-Reading the Text & Legislative History of Section 230 Understanding Section 230 begins with the letter of the law. As the late Justice Scalia once admonished, “[f]or some, policy-driven interpretation is apparently just fine. But for every- one else, let us return to Statutory Interpretation 101. We must begin, as we always do, with the text."13 To start, Section 230(b)(2) declares that “It is the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regula- tion.”14 Given this language, it is impossible to read Section 230 as a mandate for regulation, yet that is precisely what those calling for requiring Facebook (or any other social media platform) to be a “neutral public forum” are doing. Moreover, the operative provisions of Section 230 make clear that Congress intended to encourage website operators to exercise editorial discretion — the opposite of neutrality. 11 See Hayley Tsukayama, Facebook adds 3,000 employees to screen for violence as it nears 2 billion users, WASH- INGTON POST (May 3, 2017), https://www.washingtonpost.com/news/the-switch/wp/2017/05/03/facebook- is-adding-3000-workers-to-look-for-violence-on-facebook-live/?utm_term=.8d729c427ada.; Anita Bala- krishnan, Facebook pledges to double its 10,000-person safety and security staff by end of 2018, CNBC (Oct. 31, 2017), https://www.cnbc.com/2017/10/31/facebook-senate-testimony-doubling-security-group-to-20000- in-2018.html (citing Congressional testimony by Facebook VP and General Counsel Colin Stretch). 12 See D. Wakabayashi & A. Satariano, How Looming Privacy Regulations May Strengthen Facebook and Google, NEW YORK TIMES (April 28, 2018), https://www.nytimes.com/2018/04/23/technology/privacy-regulation- facebook-google.html. 13 Zuni Public School Dist. No. 89 v. Department of Educ., 550 U.S. 81, 109 (2007) (Scalia, J., dissenting) (inter- nal citation omitted). 14 47 U.S.C. § 230(b)(2). 4 Section 230(c)(2) confers two kinds of “Protection for ‘Good Samaritan’ blocking and screening of offensive material”: No provider or user of an interactive computer service shall be held liable on ac- count of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; (B) any action taken to enable or make available to information content provid- ers or others the technical means to restrict access to material described in par- agraph (1).15 Far from being “neutral,” Congress intended website operators to have extremely broad discretion in deciding what material to take down. Nothing could be more inconsistent with this notion than the idea that the government should — as it did with the Fairness Doctrine — second-guess the decisions that website operators make about what speech is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”16 The author of Section 230, Rep. Chris Cox (R-CA), was “inspired” to draft and introduce the legislation by Stratton Oakmont, Inc. v. Prodigy Services Co., a 1995 trial court decision hold- ing that website operators who assumed an editorial role with regard to customer content became “publishers” and thus could be held liable for defamatory material posted by their users.17 The House Report on Section 230 makes the statute’s purpose clear: [S]ection [230] provides ‘Good Samaritan’ protections from civil liability for providers ... of an interactive computer service for actions to restrict ... access to objectionable online material. One of the specific purposes of this section is to overrule Stratton–Oakmont [sic] v. Prodigy and any other similar decisions which have treated such providers ... as publishers or speakers of content that is not their own because they have restricted access to objectionable material.18 The Ninth Circuit said this about the statute’s legislative history: 15 Id. § 230(c)(2). 16 Id. (emphasis added). 17 Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995). 18 H.R.Rep. No. 104–458 (1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 10 (emphasis added). 5 While the Conference Report refers to this as “[o]ne of the specific purposes” of section 230, it seems to be the principal or perhaps the only purpose. The report doesn't describe any other purposes, beyond supporting “the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.”19 Congressman Cox thought it was “surpassingly stupid” that the Prodigy court had punished the platform for deleting a post for offensiveness.20 He was right, and we can thank his fore- thought and careful lawyering for much of the flourishing of the Internet since 1996. What Section 230 Immunity Actually Depends On Sen. Cruz is right about one thing: Section 230 immunity was never intended to be abso- lute.21 But he misunderstands the limiting principles written into the statute. To start, Sec- tion 230(e) (“Effect on other laws”) does not “impair the enforcement of … any … Federal criminal statute.”22 Two other key limiting principles qualify the immunity conferred upon website operators, but neither could be used to justify any kind of “neutrality” requirement. 1. Section 230 Does Not Protect Websites Responsible for the “Develop- ment” of Content The most important limit on Section 230 is also the least obvious, because it is built into the statute’s two key definitions: A website operator is only protected by Section 230, for liabil- ity regarding content created by another “Information content provider,” only insofar as it is an “Interactive computer service.” A website operator becomes an “Information content provider,” and thus gives up its immunity, whenever it becomes “responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”23 Concretely, this means that Facebook is not pro- tected by Section 230 for the content it creates, such as Facebook Watch, a program launched last year with a $1 billion annual budget to create original video content to com- pete with other video platforms (e.g., YouTube, Netflix, Amazon Streaming, and Apple 19 Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1163 (9th Cir. 2008). 20 TechFreedom, Armchair Discussion with Former Congressman Christopher Cox, YOUTUBE (Aug. 10, 2017), https://www.youtube.com/watch?v=iBEWXIn0JUY&t=3m55s at 4:06. 21 See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009) (holding that the CDA does not declare “a general immunity from liability deriving from third-party content”); Roommates.com, 521 F.3d at 1164 (not- ing CDA was not “meant to create a lawless no-man's land on the Internet”). 22 47 U.S.C. § 230(e)(1). 23 47 U.S.C. § 230(f)(2) & (3). 6 Streaming).24 Similarly, if Facebook created political content, that would not be protected by Section 230. But Section 230(c)(1) immunity does not depend on whether an operator exercises its edi- torial discretion to favor one side of a political issue or another.25 Instead, the immunity applies to all site operators, regardless of their neutrality, as long as they are not responsi- ble for “developing” user content. Thus, a website can decide which user content to feature, for example, to suit its political agenda while remaining fully protected by Section 230(c)(1). What it may not do is help draft or edit that content in a way that changes its meaning. As the Ninth Circuit noted in its 2008 panel decision in Fair Housing Council v. Roommates.com: While “a website operator who edits user-created content ... retains his immunity for any illegality in the user-created content … a website operator who edits in a manner that contributes to the alleged illegality ... is directly involved in the alleged illegali- ty and thus not immune.”26 Beyond that, the courts have set aside Section 230 immunity only in very limited circum- stances. The most important case on this issue is Roommates, where the website played middleman between would-be renters and those looking to rent out rooms. Each new user was required to answer basic demographic questions about their race, gender and sexuali- ty, and their roommate preferences — questions that facilitated housing discrimination and thus were potentially illegal even to ask under the federal Fair Housing Act.27 The court held that the site was “undoubtedly the ‘information content provider’ as to the questions and can claim no immunity for posting them on its website, or for forcing subscribers to answer them as a condition of using its services.”28 In addition, the court found the site “re- sponsible” for the development of profiles based on this information, and of search tools based upon this information. Neither Roommates nor any of its progeny would suggest that a website operator could be- come “responsible” for “development” of user content, even by soliciting, or inferring, in- 24 Deepa Seetharaman, Facebook Is Willing to Spend Big in Video Push, WALL STREET JOURNAL (Sept. 8, 2017), https://www.wsj.com/articles/facebook-is-willing-to-spend-big-in-video-push-1504863181. 25 In fact, were Section 230 immunity dependent upon on whether an operator exercises its editorial discre- tion in a politically neutral manner, it would very likely be held unconstitutional as a violation of the First Amendment. See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (recognizing that expressive mate- rials are entitled to presumptive First Amendment protection); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (holding that “political speech must prevail against laws that would suppress it, whether by design or inadvertence.”). 26 Roommates.com, 521 F.3d at 1169. 27 Id. at 1161-62. 28 Id. at 1164. 7 formation about users’ political interests or preferences. 29 The key thing about the Room- mates decision is that the information collected from users was inherently illegal. Ultimate- ly, in 2012, the Ninth Circuit decided that applying the Fair Housing Act to roommate rent- als would raise serious constitutional concerns — despite the otherwise clear illegality of the content in question.30 By contrast, not only is information about political preferences legal, it is the most highly protected form of free expression under the First Amendment.31 Roommates is notable for a second, more specific reason: it was the first court decision to discuss “neutrality” as part of the analysis of Section 230. (Several subsequent decisions have also mentioned the term, citing Roommates.32). However, in context, it is obvious that what the court was talking about had nothing whatsoever to do with political neutrality: If an individual uses an ordinary search engine to query for a “white roommate,” the search engine has not contributed to any alleged unlawfulness in the indi- vidual’s conduct; providing neutral tools to carry out what may be unlawful or il- licit searches does not amount to "development" for purposes of the immunity exception.33 In short, Roommates’ “neutrality” test is based on inducement of illegal activity, not the lev- el of involvement or manipulation of content — for a political agenda, or otherwise. 2. Political Bias Alone Will Not Cause a Website to Lose Its Section 230(c)(2)(A) Immunity for “Good Faith” Content Moderation The overwhelming majority of Section 230 cases turn on the 230(c)(1) immunity from lia- bility as publishers. A separate immunity, Section 230(c)(2)(A), protects decisions to “re- 29 Roommates, 521 F.3d at 1163–64 (noting “Congress sought to immunize the removal of user-generated content, not the creation of content: “[S]ection [230] provides ‘Good Samaritan’ protections from civil liability for providers ... of an interactive computer service for actions to restrict ... access to objectionable online ma- terial.”). See also Fields v. Twitter, Inc., 200 F.Supp.3d 964, 969 (N.D. Cal. 2016) (citing Barnes, 570 F.3d at 1100–01) (recognizing that “section 230(c)(1) protects from liability only (a) a provider or user of an interac- tive computer service (b) that the plaintiff seeks to treat as a publisher or speaker (c) of information provided by another information content provider.”). 30 Fair Hous. Council v. Roommate.com, LLC, 666 F.3d 1216, 1223 (9th Cir. 2012) (appeal after remand). 31 See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365 (2010) (“No sufficient governmental in- terest justifies limits on the political speech of nonprofit or for-profit corporations.”); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 (1989) (noting the First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”) (internal citations omitted). 32 See J.S. v. Village Voice Media Holdings, 2015 WL 5164599 (Wash. Sup. Ct. Sept. 3, 2015); Dyroff v. The Ulti- mate Software Group, Inc., 2017 WL 5665670 (N.D. Cal. Nov. 26, 2017). 33 Roommates, 521 F.3d at 1169. 8 strict access to or availability of material that the provider … considers to be … objectiona- ble.” This immunity only applies if the website acts “in good faith.”34 Because most cases are resolved on 230(c)(1) grounds, there is relatively little case law on the meaning of “good faith.” In 2011, Santa Clara Law Prof. Eric Goldman, having done an exhaustive survey of Section 230 case law, concluded that “no online provider has lost § 230(c)(2) immunity because it did not make a good faith filtering decision. Nevertheless, a few cases have given examples of some provider actions that may not be in good faith. For example, anticompetitive motivations might disqualify an online provider from § 230(c)(2).”35 In another case, “the judge found that an online provider’s failure to articulate a reason for its blocking decision could be bad faith.”36 Goldman concluded: As these examples illustrate, the statute’s “good faith” reference invites judges to introduce their own normative values into the consideration. Fortunately, most judges do not introduce their own normative values into the statutory inquiry. Several § 230(c)(2) cases have held that good faith is determined subjectively, not objectively. In that circumstance, courts should accept any justification for account termination proffered by the online provider, even if that justification is ultimately pretextual.37 Having consulted with Prof. Goldman, we are not aware of any court decisions tying “good faith” in content moderation to political neutrality. While Section 230(c)(2)(A) is rarely in- voked by litigation, it would, and should, protect Facebook, or any other website operator accused of removing content, or shutting down an account or user profile, because the op- erator found the content or account “objectionable” on purely political grounds. Attempting to read a political neutrality requirement into Section 230 would raise the First Amend- ment problems discussed below.38 34 47 U.S.C. § 230(c)(2)(A). 35 Eric Goldman, Online User Account Termination and 47 U.S.C. §230(c)(2), 2 UC Irvine Law Rev. 659, 665 (2012), available at https://ssrn.com/abstract=1934310. 36 Id. citing Smith v. Trusted Universal Standards in Elec. Transactions, No. 09-4567 (RBK/KMW), 2011 WL 900096, at *25–26 (D.N.J. Mar. 15, 2011). 37 Id. citing (on the subjectivity of good faith) Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir. 2009); e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605 (N.D. Ill. 2008). But see Nat’l Numismatic Certification, LLC. v. eBay, Inc., No. 6:08-cv-42-Orl-19GJK, 2008 WL 2704404 (M.D. Fla. July 8, 2008). 38 See infra at 16-22. 9