Antitrust Law Daily Facebook, Google, and Twitter face Section 230 questions at Senate hearing
Wednesday, October 28, 2020

Facebook, Google, and Twitter face Section 230 questions at Senate hearing

By Jody Coultas, J.D.

While Republicans went after the CEOs of the three tech companies over alleged censorship, Democrats questioned the timing of the hearing itself as it related to the election.

The Senate commerce committee held a nearly four-hour hearing today to address questions related to the protections of Section 230 of the Communications Decency Act and the behavior of tech companies as it relates to content moderation. The hearing—Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?—included the CEOs of Facebook, Google, and Twitter testifying via video about their respective platform’s work in addressing political posts and advertising, hate speech, and incitements to violence, as well as the spread of misinformation.

In his opening statements, Chairman Roger Wicker (R-Miss) cited the recent controversy around Facebook’s and Twitter’s reaction to a New York Post story concerning information found on a laptop said to be owned by Hunter Biden in suggesting that the tech companies were censoring conservative voices and viewpoints under the guise of policies related to hacked materials. Wicker also stated that Google had threatened to remove conservative websites, including the Federalist, from its ad platform for hosting comment sections that violated Google’s content policies. These content moderation policies, Wicker argued, were not applied equally to liberal accounts and users, citing a leak of President Trump’s tax returns and the Steele dossier. Selective censorship is occurring during the elections cycle, amplifying the power of Facebook and Google, Wicker said. "The time has come for that free pass to end," said Wicker in addressing the liability shield provided to platforms over those decisions. However, Wicker noted that unlike both President Trump and former Vice President Joe Biden, he has yet to conclude that Section 230 should be revoked.

Jack Dorsey, Twitter’s CEO, proposed that Section 230 be expanded to address concerns about whether tech companies were acting in "good faith." Specifically, Dorsey suggested that the legislation be expanded to require platforms to publish its content moderation process and practices, create a clear appeal process for its content decisions, and allow users to choose algorithms created by third parties to filter and rank content. Dorsey also argued that revoking Section 230 would further entrench the power of the large companies and stifle startups and innovation.

Alphabet CEO Sundar Pichai said that Google is committed to high-quality journalism and has been investing in news publishers. Contrary to the beliefs espoused by most of the Republican senators, Google is committed free expression and works without political bias. Having a political bias would be contrary to the bottom line, he said. Pichai also argued that Section 230 is foundational to U.S. leadership in the tech sector and urged the committee to be aware of consequences to businesses and customers if Section 230 is changed or revoked.

Facebook CEO Mark Zuckerberg noted that people can reasonably disagree about where to draw the line about speech and what content should be removed. Thus, he is in favor of laws that make content moderation more transparent. Zuckerberg also stated that he was in favor of an update to Section 230 that would make companies liable for intentionally facilitating illegal conduct. Facebook has also invested in policies and systems to stop foreign interference with elections, and has strengthened ad and misinformation policies concerning elections. Specifically, Facebook recently helped law enforcement agencies to thwart a plan to kidnap the governor of Michigan that had been planned in part on the platform.

Senator Gary Peters (R., Mich.) thanked Facebook for its help, but questioned whether Facebook has done enough to steer users away from a path of radicalization. Zuckerberg noted that Facebook has tried to highlight information that counters radical and violent information, and disqualifies groups from its recommendation system if they share misinformation or have content violations.

Much of the questioning from Republican senators surrounded the alleged censorship of certain voices and the allegedly discriminatory application of content moderation policies by the tech platforms. Facebook and Twitter, in particular, have been charged with censoring Trump based on the companies’ allegedly political bias while allowing incendiary and false tweets from controversial world leaders like Ayatollah Khamenei and the Communist Party of China. Other Republican senators suggested that the tech companies have engaged in electioneering and that the political leaning of employees resulted in the suppression of conservative and religious voices.

Both Senators Ted Cruz (R., Tex.) and Ron Johnson (R., Wis.) argued that the platforms have the ability to influence election results. Cruz went so far as to say that the three CEOs posed the single greatest threat to free speech and the 2020 election, a talking point he has repeated frequently.

Senator Marsha Blackburn (R., Tenn.) questioned whether Google had fired an employee that criticized her in the past and accused Google of manipulating information on its platform to the benefit of Biden.

Following questions about the cost of content moderation for the companies, Senator Jerry Moran (R., Kan.), cautioned that these costs could be a deterrent to startups and small businesses. New legislation, therefore, could stifle competition. Also, Moran brought up Facebook’s settlement with the FTC concerning its privacy policy, as well as the FTC’s settlement with Google concerning its COPPA violations.

Twitter CEO Dorsey noted that Twitter does not have a policy on misleading information specifically, but does look at tweets that contain misinformation related to the COVID pandemic, voter suppression and election interference, and has a policy against manipulated media. There is also an incitement to violence policy, which it can apply to remove tweets, but does not consider saber-rattling tweets to be against its policy. Further, Dorsey countered that Twitter does not keep a list of users that it monitors, and that many content moderation decisions are made by its algorithms rather than employees. Dorsey noted that it has amended its decision regarding the flagging and prohibition on the Post story concerning Hunter Biden’s laptop, and that the Post can unlock its account by removing the original tween and is free to then repost it.

Timing of hearing questioned. The Democratic senators meanwhile took issue with the timing of the hearing itself, with many noting that this could have been conducted after the election. Many of the Democrats argued that the hearing was merely an excuse for Republicans to bully the tech platforms to keep misleading and harmful posts on their sites until after voters have gone to the polls. Others said that the hearing was a sham and a scar on the committee’s reputation. Both parties agree that a certain viewpoint is being fostered by online platforms, they just differed as to what viewpoint that is. The Democrats argue that Facebook and Twitter were not doing enough to remove hate speech and misinformation coming from far right, radical sources. Also, Democrats questioned whether the platforms were doing enough to counter attacks on U.S. elections from foreign entities. Senator Brian Schatz (D., Haw.) suggested that President Trump does not even understand Section 230, and that Republicans have made a concerted effort to undermine Section 230 in order discourage platforms from moderating content. Trump posted tweets concerning the hearing and Section 230 as the CEOs faced questioning.

All three companies objected to the accusations that they were somehow interfering in the election or that there were no Republicans employed by the companies. However, the CEOs agreed that there should be more transparency in how the platforms conduct content moderation in order to quell the notion of bias. What users see online is generated by algorithms, which can be hard to understand. Thus, the CEOs all agree that there must be more done to inform the public about algorithms. Dorsey even suggested that users be able to turn those algorithms off, or even choose third party algorithms. Further, each CEO cited their policies concerning misinformation about the election, as well as premature election result posts. Also, they all agreed that online platforms should be held liable for any content they create that is illegal. There was also a consensus among the companies that Section 230 should not be revoked, and that doing so would not only harm the tech sector but actually reduce free speech online.

Companies: Alphabet Inc.; Facebook, Inc.; Google, LLC; Twitter, Inc.

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