OpenMarket: Media, Speech and Internet Freedom

The EARN IT Act is set for a markup in the Senate Judiciary Committee as early as this Thursday. Essentially the bill conditions intermediary liability protections for web services, known as Section 230, on yet-to-be-determined regulatory guidance regarding online child sexual abuse material (CSAM). While the need to combat CSAM is clear, the EARN IT Act is a fundamentally flawed vehicle for doing so.

Sometime next month, the House Judiciary Committee is expected to hold a hearing on competition and antitrust featuring the CEOs of Alphabet (Google), Amazon, Apple, and Facebook. All indications suggest that this hearing will be nothing more than a political stunt.

This week, four U.S. Senators asked the FCC to “take a fresh look at Section 230 of the 1996 Communications Decency Act .” Real changes to Section 230 will require congressional action. You know, like the kind of thing U.S. Senators are elected to do. But the Senators know there’s little chance of legislation on this front.

Today’s Executive Order on Section 230 liability protections for online platforms violates the First Amendment and property rights of social media companies, contradicts the most relevant case law, and ignores the actual language of Section 230 of the Communications Decency act.

Last week, The Wall Street Journal reported that the Trump administration is considering forming a panel to investigate charges of discrimination against right-leaning users and content by social media platforms. Yet, there isn’t much proof of systemic bias against the right beyond the anecdotal.

A recent opinion editorial in Newsweek is the latest salvo from the political right against Section 230 of the Communications Decency Act. Couched in criticisms of tech platforms’ responses to the COVID-19 crisis, the article succinctly lays out most of the main arguments emanating from the right against Section 230. That makes it an ideal target for rebuttal.

Allowing common ownership of newspapers and broadcast stations would allow them to achieve economies of scale in their sales departments and other keys aspects of their operations. Entrepreneurs and companies with investments in local media are natural suitors to other local outlets seeking capital and other efficiencies. Yet, regulations are keeping these ideal investors on the sidelines.

Last year, the D.C. Circuit Court of Appeals upheld virtually all of the FCC's Restoring Internet Freedom Order. This order, issued in 2017, rolled back the 2015 FCC’s attempt to impose a form of so-called “net neutrality” through public utility-style regulation of Internet service providers. CEI supported this move to remove heavy-handed, utility-style regulation.

Members of Congress pursuing compromise or bipartisan net neutrality legislation should think twice about regulating away certain practices as a priori harmful. Among the greatest harms of regulation are the beneficial market responses it often prevents and the innovations it precludes. It’s not just in times of crisis that citizens deserve the most possible flexibility and the greatest range of solutions.

Today, a bipartisan group of senators introduced the EARN IT Act, a bill that ties critical intermediary liability protections for online platforms, known as Section 230, to meeting yet-to-be-determined regulations regarding the spread of child sexual abuse material online. While the bill's goal is critically important, there are reasons to believe this legislation would backfire and is designed to accomplish other goals beyond its stated purpose, such as weakening online privacy protections powered by encryption.