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Kelly Evans: Social media and Section 230 both win

CNBC's Kelly Evans

The internet, as we know it, is about to...stay radically the same.  

The Big Tech CEOs are back on Capitol Hill today, or at least the "content trio" are: Facebook, Twitter, and Google. They've been summoned to explain their content moderation policies after their handling of The New York Post's Hunter Biden expose. Twitter, in particular, has been under intense criticism; even after CEO Jack Dorsey said it was wrong of the site to block the story link and that it was "unacceptable" not to better explain itself to users, the Post's twitter account itself is still blocked, two weeks later.  

As I wrote last week, there is potentially a lot at stake here: admit to moderating political speech, and the companies could lose their Section 230 protections, exposing them to liability for everything that everyone posts on their sites--and undermining their extremely profitable business models as a result. 

As the president's executive order put it back in May: "When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of [Section 230], it is engaged in editorial conduct.  It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider."  

Sounds ominous. So why are shareholders of these companies completely unflummoxed? Facebook is up 22% since that May 30th executive order. Twitter is up 58%. Google's parent, Alphabet, is up 7%.  

Because it looks like, if anything, the Section 230 protections for social media companies could be strengthened as a result of all this scrutiny, for the reason that no one seems to really want to destroy these companies--some of America's most valuable firms with hundreds of thousands of employees--altogether.  

Just look at the Justice Department--under Bill Barr, no less--and what it proposes as "ripe for reform." In the key part of Section 230, (c)(2), it proposes (a), clarifying that "objectionable" content means only "unlawful" or that which "promotes terrorism," so that platforms can't moderate objectionable political speech and claim immunity. Again, sounds ominous.

But, look at part (b): clarifying that acting as a "good faith" moderator--in accordance with your terms of service--would still allow immunity. Terms of service can give platforms pretty wide latitude to moderators to police political speech; Ravelry, a social media platform for knitters, says it does not permit hate speech, and that "support of President Trump, his administration, or individual policies that harm marginalized groups, all constitute hate speech." Nothing would theoretically prevent Twitter from doing the same thing.  

And in part (c), the DOJ suggests "explicitly overrul[ing] Stratton Oakmont to avoid Moderator's Dilemma." Yes, that Stratton Oakmont, which gave rise to "The Wolf of Wall Street." Turns out derogatory comments about the firm posted to a message board in the early '90s prompted them to sue and be rewarded with a Supreme Court ruling holding the platform (Prodigy) liable because it exercised editorial control over its comment boards, thus prompting the creation of Section 230 in the first place. 

Anyhow, the DOJ says that decision should be overruled, and it proposes "clarifying that a platform's removal of content pursuant to Section 230(c)(2) or consistent with its terms of service does not, on its own, render the platform a publisher or speaker for all other content on its service." (Emphasis mine.) And that's how you start with an ominous-sounding executive order cracking down on Big Tech that, to me, sounds like it will actually enshrine the status quo.  

And that makes sense. You can't get rid of Section 230, or else Yelp ceases to exist (or is only filled with five-star "reviews"). It seems unwise to try and do the Josh Hawley thing and require the big sites to prove their neutrality to the FTC--itself a political body--in order to keep their Section 230 immunity. So what do you do? You basically leave it all as-is, and let the companies hang themselves if users get turned off by their rules and behavior.  

Section 230 stays. Social media stays. Users? That's the trillion dollar question.  

See you at 1 p.m... 


Twitter: @KellyCNBC

Instagram: @realkellyevans