Facebook's Proposed Section 230 Reforms Just Create New Problems

At last week's hearing regarding online disinformation in front of the House Committee on Energy and Commerce, Facebook CEO Mark Zuckerberg proposed specific changes to the much- discussed Section 230 of the Communications Decency Act. Similar to the “EARN IT Act,” Zuckerberg’s ideal Section 230 liability protection would only be granted to companies if they agreed to meet best practices, established by a third party, to remove illegal content. 

This proposal suffers from a few fatal flaws. In fact, it would only further politicize online speech — and create a host of other problems, too.

There are a lot of questions to ask of Zuckerberg here. After all, any proposal which relies on a third party setting up best practices needs to be clear about who exactly the third party would be. 

If it’s the government, then there’s a plethora of problems that come alongside that. A government agency like the Federal Trade Commission would have incredibly politicized and biased standards, since whatever party which controls the executive branch would have a majority of the commissioners. In addition, with elections affecting the makeup of the commission, best practices could change dramatically every four years. Businesses, especially those dealing with complicated issues like content moderation at scale need more certainty of industry standards.  

Even if the third party were set up to mirror the Federal Election Commission, which has a balanced partisan makeup, it wouldn’t solve the problem. The temptation to change that structure of the agency to make it partisan would be ever present. In fact, it already is — as can be seen with the recently passed H.R. 1.

A private third party like the Digital Trust and Safety Partnership wouldn’t be much better. The threat of institutional capture would still exist. Such organizations would naturally favor incumbent companies rather than startups or companies with disruptive business models. Likewise they’d be vulnerable to both industry capture from influential firms or political capture, since members of Congress could either appoint or lobby for people to serve with the third party. 

To Zuckerberg’s credit, he perceives that such a system might favor larger companies over smaller ones and advocates that any system should have different standards based on the size of the platform as defined by the third party. Such a carveout naturally asks by what metric companies would be judged to be large or small. Would it be users? Revenue? Profit margin?

Regardless of the metric, a two-tiered structure of internet law would also create a host of unintended consequences. Many bills introduced at the state level addressing perceived political censorship also would implement a two-tiered system. Like those proposals, they would create a disincentive for smaller companies to grow while potentially locking in large incumbents, rather than having innovation and consumers decide where people spend their time online. 

For all these risks and downsides, this proposed solution actually addresses few concerns from people or policymakers. There are certainly a few bad actors with issues around illegal content such as Pornhub or 8kun, but those who testified to Congress are not the ones with such issues. Indeed, the testimony for all the companies laid out how they are already spending millions of dollars to remove illegal content as well as other content they deem harmful. So if there are bad actors that need to be addressed, Congress should target them specifically rather than the whole of the internet.  

While still more thoughtful than most bills regarding Section 230, policymakers should be wary of Zuckbergs’s proposal. Section 230, combined with market forces, provides ample incentives to remove illegal content, which already happens all the time. Any attempt to amend Section 230  will never work out the way people pretend they will. If they want the best possible online experience for their constituents, legislators will just use a bit of self-restraint and leave Section 230 alone.

Eric Peterson is the Director of the Pelican Center for Technology and Innovation. He is a graduate of Tulane University and lives in New Orleans.