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Kelly Evans: The Big Tech censorship confusion

CNBC's Kelly Evans

Ask any tech investor what makes companies like Google and Facebook so insanely valuable, and you'll hear the magic "p" word: because they're platforms

Geekwire, for instance, devoted a whole podcast last year to "Platform Power: the hidden forces driving the world's top businesses." Platforms, said MIT's Michael Cusimano, "generated roughly the same amount of revenues [as other firms, but] were almost twice as profitable and also much more valuable." Everyone wants to be a platform these days. Uber's not a taxi company--it's a platform! Airbnb: platform. Twitter: platform. Amazon: platform. Etc. 

The thing about online platforms is that they're supposed to function as meeting grounds for users without the company itself needing to get too involved, which is what keeps costs down and makes the economics so attractive. Libraries, actually, are old-school platforms. No one would sue a library, for instance, for defamation as a result of a book or magazine it distributed--they'd sue the author or publisher, and the law protects libraries that way.  

And that brings us to this week's Big Tech censorship controversy. Facebook and Twitter yesterday took the extraordinary step of limiting users from sharing a New York Post front-page story about the Biden family's dealings in Ukraine. Facebook said it was waiting on outside fact-checkers to review the story's claims. Twitter, by the end of the day, said the problem was the photographs of emails posted with the story and that they didn't want to encourage hacking. Jack Dorsey later admitted their communication about the situation "wasn't great."  

As expected, this sent up howls over censorship, bias, double standards, and free speech. But the real issue is whether these companies are platforms, or publishers. And by acting as publishers yesterday--intervening in how political speech gets treated--the companies are at risk of losing the "platform" protections that have underpinned their success. 

I mentioned libraries; bookstores and newsstands have also traditionally been exempt from defamation claims. So when internet platforms came around, Congress offered them the same treatment, in Section 230 of the Communications Decency Act. This gave online platforms immunity for users' defamatory, fraudulent, or otherwise unlawful content. But, "they only got it because it was assumed that they would operate as impartial, open channels of communication--not curators of acceptable opinion," as City Journal has noted.  

Yes, the platforms are encouraged to moderate offensive speech--so they can't get in trouble for removing content that is, for instance, "obscene," "excessively violent," or "otherwise objectionable." But courts have ruled that "otherwise objectionable" does not include political speech.  

It would seem, in other words, that by limiting political speech, especially in such a high-profile way this week, Facebook and Twitter are practically asking to lose their Section 230 protections. If they did, they would suddenly become liable for everything "published" on their websites; I don't see how they could survive that. Still, investors don't seem too concerned. Shares of each are off only about 2% today after monster gains this year.  

A final point: both Trump and Biden have come out in favor of repealing Section 230 altogether, and it would seem to have plenty of public support. But why should that even be necessary? Section 230 could continue to protect online platforms that are genuinely open forums from litigation, while those like Facebook and Twitter (and possibly Google) who choose to moderate speech would lose that protection.  

Perhaps that would be the fairest way to "punish" and/or regulate Big Tech; let it fall victim to its own success. Only by becoming so central to the political dialogue and getting sucked into it themselves have these companies now put their entire business model at risk.  

More coming up around 2 p.m! See you then... 


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