For more than two decades, internet companies have been shielded from liability for much of what their users post by a once-obscure rule called Section 230 of the Communications Decency Act. Now that shield — and how internet companies moderate content on their sites — is being questioned by lawmakers on both sides of the political aisle.
On Wednesday, the chief executives of Google, Facebook and Twitter will testify before a Senate committee about their moderation practices.
The hearing, held by the Senate Committee on Commerce, Science and Transportation, will be a repeat performance before Congress for Sundar Pichai of Google, Mark Zuckerberg of Facebook and Jack Dorsey of Twitter. But with the Nov. 3 election less than a week away, the executives face additional pressure to manage misinformation without exerting unfair influence on the voting process.
Although the companies are responsible for protecting intellectual property and rooting out violations of federal criminal law, Section 230 shields them from defamation lawsuits and other legal claims that could be costly to fight.
The law, considered one of the bedrock regulations that allowed the commercial internet to flourish, was intended to give tech companies broad discretion over moderation, allowing them to set rules for what users could and could not post on their sites. It was meant as a practical solution that would allow people to express themselves freely online, while keeping companies off the hook for every comment their users made.
Republicans argue the companies — Twitter, in particular — are being heavy-handed in their content moderation and are unfairly silencing conservative voices. Democrats, however, argue the companies aren’t doing enough to keep misinformation and outright lies off their platforms.
In May, President Trump also issued an executive order intended to strip the companies of the legal safe harbor provided by Section 230, though it was not clear what authority the administration would have to make that change.
The hearing begins at 10 a.m. on Wednesday, and the chief executives are expected to take questions remotely from 26 senators. The hearing is expected to last several hours.
Mr. Dorsey is likely to face the toughest questioning because Twitter has been particularly aggressive in its efforts to fact-check and take down posts that misinform users about the pandemic and the presidential election.
Last week, Twitter blocked a link to a New York Post article about Joseph R. Biden Jr.’s son, Hunter Biden, saying that it violated company policies against sharing personal information and content stolen by hackers. After an outcry from conservative leaders, Twitter walked back the decision and allowed the link to be shared.
Mr. Dorsey and Mr. Zuckerberg are scheduled to testify again on Nov. 17 in a Senate Judiciary Committee hearing that will focus on Twitter and Facebook’s decisions to limit the spread of the New York Post article. Facebook took steps to reduce the spread of the story and said it was eligible for fact-checking, but was not as aggressive as Twitter.
If there is one thing Republicans and Democrats can agree on, it’s that the internet giants have become too powerful and need to be restrained. Many lawmakers also agree that the companies should be stripped of a law that shields websites from liability for content created by their users.
But members of the Senate commerce committee will almost certainly make wildly different arguments to drive home their points on Wednesday.
Republicans regularly accuse Facebook, Google and Twitter of censoring conservative viewpoints by labeling, taking down and minimizing the reach of posts by Republican politicians and right-leaning media personalities. They have the support of President Trump, who issued an executive order this summer aimed at stripping the technology companies of their safe harbor under Section 230 of the Communications Decency Act.
Three Republican senators — Ted Cruz of Texas, Mike Lee of Utah and Marsha Blackburn of Tennessee — will almost certainly accuse the Silicon Valley giants of censorship. The senators have been among the most vocal about a perceived liberal bias inside the tech companies. Some of the hardest questions and finger pointing could be directed at Jack Dorsey, the chief executive of Twitter, for recent decisions to take down and label posts from Mr. Trump.
Don’t expect Democrats to touch the subject of censorship. They will instead focus on a range of issues that point to the problem of power held by the internet giants. Senator Maria Cantwell of Washington, the ranking Democrat on the commerce committee, will call for the companies to help local news outlets, whose business models have been hollowed out by the rise of the internet. Expect Senators Amy Klobuchar of Minnesota and Richard Blumenthal of Connecticut to accuse Google and Facebook of monopolistic behavior and to argue for the need for stronger antitrust enforcement. Senator Ed Markey of Massachusetts and Mr. Blumenthal will probably harp on privacy practices.
Another thing to watch for from the Democrats: possible signals of what the party will push forward if Joseph R. Biden Jr. wins the presidential election and the Senate flips to Democratic control.
Conservatives have said for years that online social media platforms censor their views. But their evidence is largely anecdotal, and conservative accounts frequently perform extremely well online.
The charges of censorship will almost certainly play a central role in Wednesday’s hearing. Republicans like Senator Marsha Blackburn of Tennessee and Senator Ted Cruz of Texas are likely to criticize the chief executives about how their platforms have moderated content posted by conservative politicians or right-wing media outlets.
Conservatives have seized on individual instances of content moderation to claim that there is a systemic bias against them on the platforms. In some cases, the companies have said that the content violated their policies; in other instances they have said that the moderation was a mistake.
Recently, Republicans pointed to the decision by Twitter and Facebook to restrict the sharing of stories about Hunter Biden, the son of Joseph R. Biden Jr., the Democratic nominee for president. Twitter initially said that the story violated its policy against the sharing of hacked information, but later reversed itself. Facebook has said it is restricting the story’s reach while it waits for a third-party fact checker to evaluate the claims.
In 2017, Twitter took down an ad for Ms. Blackburn’s Senate campaign after the company deemed it “inflammatory” for a line that included a reference to “the sale of baby body parts,” saying the post violated its policies. The company changed its mind a day later.
In 2016, Facebook had to answer questions from conservatives about whether its Trending Topics section, which at the time was run by human curators, not the algorithms that power its News Feed, had suppressed conservative news. The company said it found no evidence that the accusations were true.
None of these cases unearthed evidence of a systemic bias against conservative content. A 2019 study by The Economist found that Google did not favor left-leaning websites. Posts from commentators like Ben Shapiro regularly rank among the most highly-engaged on Facebook. Liberals have also had their posts flagged or removed from the platforms — groups that advocate for racial justice, for example have said that Facebook has taken their content down.
Democrats have accused Republicans of raising the issue to manipulate Silicon Valley companies into being more cautious when it comes to moderating false or misleading information posted by conservatives.
“There’s simply no reason to have this hearing just prior to the election, except that it may intimidate the platforms, who have shown themselves to be vulnerable to political blunt force in the past,” Senator Brian Schatz, Democrat of Hawaii, wrote in a tweet this month about Wednesday’s hearing.
It used to be unusual to see a top tech executive face tough questioning before lawmakers on Capitol Hill. But that has changed in the past few years. Now, the chief executives of Facebook, Google and Twitter are old hands at Congressional hearings.
The hearing on Wednesday will be the fifth time Mark Zuckerberg of Facebook has testified before lawmakers; the third time for Sundar Pichai of Google; and the third for Jack Dorsey of Twitter. All of the appearances have taken place in the past three years.
The hearings have been a boon to law firms in Washington that prepare the chief executives. WilmerHale has been on Facebook’s retainer for years, for example, and has now prepped Mr. Zuckerberg for all hearings since his first in March 2018.
At Wednesday’s Senate hearing, the chief executives of Twitter, Facebook and Google will deliver a full-throated defense of speech on their platforms, according to their prepared testimony, which was made public on Tuesday.
All three leaders are also set to vigorously support Section 230, the law that has shielded their companies from liability for much of the user-generated content posted to their sites — even if the law does not stay the same.
Here’s a look at what each chief executive plans to argue.
Jack Dorsey, chief executive of Twitter, used his prepared testimony to suggest ways Congress could change Section 230 without constraining online speech.
“Without Section 230, platforms could potentially be held liable for everything people say,” he said. Companies should instead be required to provide transparency about their moderation policies, while giving users a say in which algorithms rule their news feeds and allowing them to appeal moderation decisions, he said.
Mr. Dorsey also took a swing at Facebook and cautioned against sweeping new regulations. That’s because “sweeping regulations can further entrench companies that have large market shares and can easily afford to scale up additional resources to comply,” he said. “Twitter does not have the same breadth of interwoven products or market size as compared to our industry peers.”
Sundar Pichai, who is chief executive of Google and its parent company, Alphabet, emphasized Google’s utility and value in his prepared comments. Google, which the Justice Department sued last week, accusing it of anticompetitive and monopolistic practices, provides services like search, Gmail, maps and Google Photos “for free,” Mr. Pichai said.
Mr. Pichai left his defense of Section 230 to the end of his prepared testimony and kept it brief. He said Google and its video site, YouTube, could provide “access to a wide range of information” only because of a legal framework like Section 230. He also reiterated that Google approached its work without political bias.
“To do otherwise would be contrary to both our business interests and our mission, which compels us to make information accessible to every type of person, no matter where they live or what they believe,” Mr. Pichai wrote.
Mark Zuckerberg, Facebook’s chief executive, said in his prepared testimony that he supported Section 230. Without it, he said, companies like his might have to censor more content to avoid legal risk.
But Mr. Zuckerberg also said Section 230 needed significant changes “to make sure it’s working as intended.” He said that people across party lines had complained about how the law handles content, and that the government should legislate changes rather than rely on the companies to decide how to govern themselves.
“By updating the rules for the internet, we can preserve what’s best about it — the freedom for people to express themselves and for entrepreneurs to build new things — while also protecting society from broader harms,” Mr. Zuckerberg said.
Mike Masnick, editor of the blog TechDirt and a longtime chronicler of tech policy issues, said that while big companies like Facebook could afford the cost of complying with more restrictive updates to Section 230, smaller rivals would not be able to do the same. Like Mr. Dorsey, he argued that such changes would lock in Facebook’s dominant position in the marketplace.
“Make no mistake about it: This is Mark Zuckerberg pulling up the innovation ladder he climbed behind him,” Mr. Masnick wrote in a blog post on Tuesday.