It's Time for Congress to End Big Tech's Sweetheart Deal | Opinion

The COVID-19 pandemic has unmasked the massive role that Big Tech plays in various aspects of American life—from facilitating telework, to home learning, to rapid delivery of goods. But the ramifications of tech's expansive role in our lives are only starting to become clear.

For speech, in particular, the consequences of tech's growing power have become increasingly plain. In April, Facebook began removing content promoting anti-lockdown events. From ABC News to Politico, it was reported that this was being done at the behest of state governments. By the evening, Facebook clarified that it would only be removing from its platform content pertaining to groups whose activities violated governments' social distancing guidance.

In other words, Facebook is not removing protest content that is unlawful—but rather, content that goes against state government "advisories." That is, guidance without the force of law.

On YouTube, owned by Google, a video of two emergency room doctors publicly questioning the official narrative about COVID-19 reportedly had over five million views before YouTube snatched it down, stating the video "violat[ed] our Community Guidelines, including content that explicitly disputes the efficacy of local healthy [sic] authority recommended guidance on social distancing that may lead others to act against that guidance."

This type of private company censorship is allowed because of Sec. 230—the part of the Communications Decency Act, passed by Congress in 1996, which provides Big Tech special legal treatment.

Sec. 230 was designed to allow platforms to remove "obscene, lewd, lascivious...or otherwise objectionable" content without being sued for doing so. But with the help of the courts, that targeted immunity privilege has been stretched to include, among other things, the enforcement of government-determined narratives against speech that would otherwise be constitutionally protected if it occurred outside these platforms and away from Sec. 230.

"For a private company to simply delete the promotion of protests it deems unacceptable is a remarkable expansion of its power over what was once a sacrosanct and constitutionally protected freedom," wrote one commentator recently. "Through these private companies...government officials can in effect restrict speech they are obligated to protect."

The companies and their advocates say this type of moderation is necessary to ensure free speech. But what does it mean for free speech when the major communications platforms like Facebook, YouTube and Google align themselves with the government to deem certain speech, which would otherwise be constitutionally protected, too dangerous?

Rhetorically, it's an odd turn, as the antidote to bad or misleading speech is actually more speech—the robust debate and engagement that shapes ideas, rebuts other ideas and reforms narratives. This is especially true in the sciences, whose entire history is an arc composed of overturning ideas once considered "settled."

The most sinister thing about these decisions, however, is that when it comes to deciding what COVID-19 information we get to see, Big Tech companies have now become a de facto arm of the state.

To paraphrase one doctor's view, the videos, posts and protest groups aren't taken down because of any judgement on the underlying medical merits. Rather, they are removed because they are considered divergent from the commonly propagated narrative.

They are removed, in essence, because the people who hear them might misbehave.

It's Time to Revisit Big Tech's Government Subsidy

Far from private companies merely initiating their own content moderation, these platforms are now acting as enforcement wings for government-approved information campaigns. In Facebook's case, this means removing the ability of citizens to organize in a constitutionally protected activity—an activity that is not illegal, but is merely advised against.

In the instances of Facebook and YouTube, the companies are imposing fashionable governmental views upon the speech and content of their users. (It is unclear what happens when governmental views on the virus change—as they often have.)

These are private corporations, so they can exercise their free speech rights while trampling on yours. After all, these private companies are not obligated to protect your speech.

Facebook corporate headquarters in California
Facebook corporate headquarters in California JOSH EDELSON/AFP via Getty Images

But it's not that simple. These private corporations only exist because of special government protections—protections that, given the growing power of Big Tech, need greater oversight and perhaps revision.

Sec. 230—the sweetheart deal that allows tech to censor content without the same consequences as, say, the newspaper industry—is, at its root, a congressionally authorized tech industry subsidy. It has allowed the industry to grow from dorm rooms and garage basements to billion-dollar omnipresent mega corporations.

And in that regard, Sec. 230 is not unlike the host of other subsidies the government provides to various industries: expensing provisions given to manufacturers, the federal assistance we provide farmers to purchase crop insurance and so forth. These industries will tell you that these provisions are vital to their survival—and they might be right. But that hasn't prevented them from being routinely debated, updated or otherwise modified.

As these platforms become more and more brazen in their removal of speech, often at the behest of overzealous politicians, it is clear that Congress must revisit Sec. 230. It is a privilege that, like any other industry subsidy, should be reviewed and assessed not merely for its practical relevance and effectiveness for an industry that continues to accumulate unprecedented power, but also for the future of bedrock values like free speech in America.

If COVID-19 has proven anything about Big Tech, it is that these companies have accumulated orders of magnitude more power than politicians could have imagined just a decade ago. That power has benefited us, but it has also threatened us. An intellectually honest assessment of its ramifications is now desperately needed.

Rachel Bovard is senior advisor to the Internet Accountability Project.

The views expressed in this article are the writer's own.