The Internet Is Not Facebook; Regulating It As If It Were Will Fuck Things Up
I've mocked the NY Times for its repeated failures to understand basic facts about internet regulations such as Section 230 -- but the organization also deserves credit when it gets things (mostly) right. Last week, Farhad Manjoo wrote up a great opinion piece noting that, even if you agree that Facebook is bad, most regulatory proposals would make things much, much worse.
He focuses on the blatantly unconstitutional "Health Misinformation Act" from Senators Klobuchar and Lujan, which would appoint a government official to declare what counts as health misinformation, and then remove Section 230 protections from any website that has such content. As Manjoo rightly notes, it's as if everyone has forgotten who was President from 2017 to early 2021 and hasn't considered what he or someone like him would do with such powers:
There's only one problem: What is health misinformation? I know of no oracular source of truth about Covid-19. Scientific consensus has shifted dramatically during the pandemic, and even now experts are divided over important issues, such as whether everyone should get a vaccine booster shot. Klobuchar and Lujan's bill elides these complications. Instead they designate an all-knowing authority: Health misinformation, the bill says, is whatever the secretary of health and human services decides is health misinformation.
I'm sorry - what? Have the senators forgotten that just last year we had a president who ridiculed face masks and peddled ultraviolet light as a miracle cure for the virus? Why would we choose to empower such a president's cabinet appointee as the arbiter of what's true and false during a pandemic? And not just a pandemic - since the law defines a public health emergency so broadly, I wouldn't put it past a science-averse future secretary from attempting to declare discussions about abortion, birth control, transgender health or whatever else as misinformation."
As he notes, so many of the proposals out there fill him "with deep dread" and they should. They're "this is bad, we must do something, this is something" proposals with little regard to (1) whether or not they are constitutional, and (2) whether or not they'd do anything to help with whatever the "bad" thing is. And, a key point, many of them would help Facebook at a moment when Facebook is losing users to competitors:
Rather than curbing the influence of Big Tech, altering Section 230 might only further cement Facebook and other tech giants' hold over public discourse - because the giants might be the only companies with enough resources to operate under rules in which sites can be inundated with lawsuits over what their users post. Smaller sites with fewer resources, meanwhile, would effectively be encouraged to police users' content with a heavy hand. It is no accident that Facebook has been telling lawmakers that it welcomes reforms to Section 230 - while smaller sites like Etsy and Tripadvisor are nervous about the possibility.
What's clear (though Manjoo doesn't say it in the piece) is that so many of these regulations are really targeted at Facebook, and don't realize how much they'd impact the wider ecosystem. They're regulating the internet as if Facebook was the internet. And the end result might be that... it becomes a self-fulfilling prophecy. If only Facebook can survive under these regulations, then Facebook becomes the internet.
There is one point in the article that I think is questionable, though. Manjoo spoke to NY Times suer (though he eventually dropped the suit) Larry Lessig, who told him:
Lawrence Lessig, a professor at Harvard Law School who has been working with Haugen, the Facebook whistle-blower, told me that some content-neutral rules for online speech might survive constitutional scrutiny - for example, a rule that set an upper limit on the number of times a Facebook post could be reshared.
And... I may not be a Harvard law professor, but that's just wrong. Limiting how often something can be shared is clearly a 1st Amendment issue, because it is the literal suppression of speech. It may be "content neutral" but that's not the only part of the strict scrutiny test used to judge whether or not something can get around the 1st Amendment. They also need to be narrowly tailored, be the least restrictive means to achieve their result and leave open ways for speech to be spread -- and I can't see how restricting how often something can be shared can possibly meet that bar.
Either way, kudos to Manjoo and the NY Times for highlighting that even if you think Facebook is awful, most regulatory proposals would probably make the internet, and Facebook, way worse.