Balancing Free Expression, Free Association, and Free Enterprise
Solution For A First Amendment Dilemma -- How To Regulate the Internet?
This Triggernometry interview with Sam Harris has renewed the controversy about online censorship by Twitter, Facebook, YouTube, Google, and other big tech giants.
In this interview Sam Harris admitted that these Progressive social media giants coordinated their efforts to suppress the Hunter Biden Laptop story that the New York Post broke in October 2020. The NY Times, Washington Post, and the Mainstream Media outlets all denied the authenticity of the story in October 2020 by citing 51 Former Senior Intelligence Officials who signed a letter declaring that the NY Post story was likely a piece of Russian disinformation. In March 2022, these media outlets finally conceded the truth, long after President Biden would suffer any electoral consequences.
Sam Harris essentially argued that the ends justified the means because a conspiracy to thwart the re-election of Donald Trump was no worse than a private meeting of scientists figuring out how to prevent an asteroid from hitting the earth.
There are dozens of other examples of persons whose accounts were cancelled by these social media giants for infringing upon contentious topics regarding transgender medical practices on minors, Critical Race Theory, and COVID skepticism.
Conservatives are split about how to respond the suppression of expression of Conservative voices by Big Tech. The Libertarian wing says that principles of free enterprise and freedom of association dictate that companies should have the right to exclude whomever they wish from their social media platforms. We should rely upon entrepreneurs to create alternative platforms if certain companies wish to exclude a part of the market. Ironically, many Progressives, who are otherwise hostile to these Libertarian concepts, are making these arguments as it applies to Big Tech.
In response, Conservatives and some Liberals reply with three separate arguments. The first is based upon Anti-Monopoly statutes. The second is based upon the special protections given to these Tech Giants by Section 230 of the Communications Decent Act of 1996. The third is based upon the “common carrier” analogy with the government-sanctioned monopoly granted to AT&T prior to its break-up in 1984.
The “common carrier” argument makes an analogy with talking over the phone and using Facebook, Google, YouTube, Instagram, Tik Tok, or Twitter. These are monopolies that are essential for conducting business and for communicating with other persons, especially for political activities.
However, this analogy excludes a crucial piece of information. When you use a telephone, you pay a fee to make your calls, and AT&T couldn’t exclude you from becoming a customer. In contrast, the Tech Giants rely upon advertisers for their revenue and the users and content providers don’t have to make any payments. For historical note, Mark Andreesen observed that in the early days of the internet (mid 1990’s) credit card companies refused to process payments to facilitate a subscriber-based model due to technical limitations and concerns about potential unlawful uses of the websites. Therefore, this accelerated the movement toward an advertising-based business model for all tech companies.
Therefore, these Tech Companies have to curate their ecosystem of users to make it attractive for the advertisers who support them. That is why they adopt Terms of Service Agreements that go beyond the mere prohibition of unlawful activities. Compare the user ecosystem of 4Chan with YouTube to observe the differences in the kinds of companies willing to advertise.
The more compelling argument is the special treatment these companies receive under Section 230. If the New York Times publishes an article that causes a tort, then they will be liable for payment of damages, even if the writer was not an employee of the newspaper. Therefore, Why should these Tech Companies avoid the same kind of responsibility and accountability for the persons who “publish” their content on these platforms?
This is especially important because these Tech Companies are curating their content regarding several controversial cultural and social matters. They are not neutral platform providers. An argument could be made that Section 230 is a violation of the equal protection provision of Section 1 of the 14th Amendment because it treats newspapers and magazines differently than interactive computer service providers.
In attempt to mediate this dispute, I propose the following replacement of Section 230 that not only covers internet-based tech companies, but all telecommunications in general.
This statute defines the characteristics of Public and Private Information Network Companies.
An Information Network Company shall be presumed to be an Unprotected Information Network Company (UINC). It shall be treated as the publisher or speaker of any information that is created by its Network Producers (producers). Unprotected Information Companies shall be liable for tort claims arising from slander or libel by its Network Producers.
If an Information Network Company adheres to regulations required for Protected Information Network Companies (PINC), then it shall not be treated as the publisher or speaker of any information that is created by its Network Producers.
A Safe Harbor requirement for a PINC is that they allow any content that is not prohibited by Federal law, and that they do not discriminate in their payment of revenue to producers or issuance of warnings based upon the content hosted by the PINC.
If a PINC blocks or restricts producers and users that are not transmitting or receiving content prohibited by law, then the PINC must comply with the following:
The PINC offers users and producers an option to pay a fee for service subscription that provides no less than one-thirtieth of the total revenue of the PINC. The fee schedule does not discriminate based upon the content that is produced, seen, or heard. The transmission quality and range of features offered to the subscriber shall not be inferior to those offered to the non-subscriber. The PINC shall offer the subscriber the option to restrict and prohibit Network User Surveillance by the PINC.
This last sentence is an important privacy option. A PINC must offer privacy to persons willing to pay for the privilege. The leverage for extracting this option is the ability to be classified as a PINC. The minimum revenue floor prevents a PINC from discouraging subscriptions by charging excessive fees to discourage users from receiving privacy benefits.
For subscribers and non-subscribers, the PINC may provide warnings or block content that displays nudity, solicitations of sex with minors, bodily mutilation, physical battery upon persons or animals, unauthorized disclosure of a person’s residence or contact information, or content that uses enumerated words commonly understood as profane. The PINC must solicit the consent of the producer or user prior to imposing additional warnings or blocking additional content for the producer or user beyond those enumerated above.
Otherwise, the Information Network Company shall be considered as the publisher of the information and liable for any claims for damages as a UINC.
Federal Courts shall adjudicate claims of violations by a PINC. The prevailing party in any lawsuit may recover reasonable attorney fees in addition to any damages awarded. Minimum damages for a first offense against a user or producer by an interactive service provider shall be one one-hundredth of the compensation of a Member of the House. Successive violations shall double the amount of the previous award of damages to the injured person.
The PINC must contact any user who has violated these guidelines with an explanation of which guidelines were violated, and the remedy for reinstatement or lifting of restrictions. This message must be posted for public viewing and retrieval from the PINC, in accordance with law, for no less than sixty days and archived in the format prescribed by law. Producers and Users may be banned by the PINC after a second, repeat violation following a prior citation by the PINC.
This modifies Section 230 of the Communications Decency Act of 1996. This model statue uses the term Information Network Company to give a broader definition encompassing computer services and telecommunications than the term “interactive computer services” employed by Section 230.
If a PINC is found guilty of violating these guidelines more than one hundred times in any twelve-month period, then it shall be reclassified as an UINC for no less than six months.
Congress shall have the power to enforce this Section by appropriate legislation.
Definitions:
Information is content transmitted over the electromagnetic spectrum that is received by a person in a visual, audio, or other sensory form.
Software is the set of programs, procedures, and related documentation associated with the control of machinery, electronic systems and the distribution and transformation of information.
Node is an address on a network that is the end point for transmission of information processed by a Network User.
This could be a phone number, website, Tik Tok or Instagram account.
Media is the physical equipment, machinery and software that transmit and receive information.
Information Network is the system of media utilizing the electromagnetic spectrum to connect nodes.
The totality of land lines and undersea cables, mobile towers, satellites and the infrastructure and software required to manage and maintain it.
Domain is a textual or numeric representation of Node that is commonly referenced by Users and Producers.
Phone number, website address
Information Carriers are the persons who own and operate a portion of the Information Network and regulate who can access it and how it can be used.
AT&T, Verizon, T Mobile, Spectrum, Starlink, Governments, etc.
Information Host owns and/or operates the media at nodes that contains information controlled by Network Producers.
Substack, Word Press, Go Daddy, Blue Host, Web Gator, YouTube, Instagram, Facebook, Tik Tok, etc.
Network User is a person that accesses the Information Network from one or more nodes to consume information stored by an Information Host.
Network Producer is a person that creates or publishes information that is stored by an Information Host intended for consumption by a Network User.
NY Times, CNN, Fox, Bloggers, YouTube Channel Personalities, Podcasters, Netflix, Apple TV, Disney +, Radio and Television Stations
Browser is the software utilized by a Network User to search for Nodes on the Information Network to consume the Information stored at the Nodes.
Google Chrome, Brave, Firefox, Explorer
Directory is list of Domains or Nodes
Phone directory, List of websites,
Information Transmission Tool is the software and equipment utilized to send messages over the Information Network.
Electronic mail, fax, Zoom, telephone, walkie talkie, short wave radio, radio
Search Engine is the technical application utilized by a Network User to search for Nodes.
Yahoo, Google,
Solicited Search occurs when a Search Engine recommends or ranks Nodes for Network Users in response to a query.
Network User Surveillance is the storage of the history of actions by a Network User on the Information Network, and the conversion of that User’s history into commercial gain or for control and punishment by a government.
Google uses your browsing history to help its advertisers better guide who receives their solicitations. The Chinese government can also use your browser history to sanction anti-State behavior.
Information Network Company is a commercial enterprise that performs one or several roles described above.
Alphabet, Inc. owns Google and YouTube so it is a Brower, Search Engine, and Information Host. Google Phone is a phone service. AT&T and Verizon own mobile towers, land lines, and operate machinery to handle phone calls, internet. It lays undersea cables dedicated for its own use.
I believe that this language provides the kind of precision that avoids delegating repressive and subjective interpretative authority to the same Federal Government that gave us the Fairness Doctrine that was introduced by the FCC in 1949 and abandoned in 1987. These are clear rules that allow the Tech Companies to cultivate a healthy user audience that is attractive to advertisers without unfairly suppressing a selected spectrum of political viewpoints.
David Barulich