Was Twitter’s censorship of the Hunter Biden exposé the last nail in Section 230’s coffin?

This past week the New York Post reported on startling and somewhat suspect revelations regarding the purported misuse of power by then-Vice President and now Democratic Presidential Candidate, Joe Biden, and his son Hunter.

The details of the story are somewhat sordid, but not especially relevant to our topic. The main concern is the meta-narrative surrounding the story: the subsequent throttling of the New York Post’s news story by various social media platforms like Twitter and Facebook. Twitter, for example, went so far as to block all posts and accounts that linked to the story, including that of the White House Press Secretary.

While the Post is unabashedly conservative-leaning and is often pejoratively referred to as a tabloid, it is considered the oldest continuously published daily newspaper in the country. Founded by Alexander Hamilton and with a daily circulation of almost 250,000, it has the fourth-highest readership in the country. Like most other news publications, it has had its fair share of controversies.

Twitter provided a number of reasons for blocking the Post’s story. Unfortunately, its reasoning came substantially after the fact, and far too late for those who believe that the online platform is clearly biased against conservatives. Twitter eventually argued that it attempted to prevent the disclosure of private information regarding the Bidens and that it had a policy against promoting hacked content (although the story specifically noted that the contents of the hard drive were not hacked).

Regardless of whether Twitter was right about the suspicious nature of the story, Twitter's rules against promoting hacked content are suspect and problematic. If they were to be actually enforced, they would stifle important and valuable sources of information such as Wikileaks, whistleblowers, or whoever disclosed Donald Trump's taxes, which by the way, Twitter had no concern with broadly disseminating only weeks earlier.

While this recent episode further adds fuel to the fire of the American Right that feels that social media platforms are especially hostile to them compared to their counterparts on the Left, a number of analyses on both the Right and the Left have actually been unable to prove any sort of systematic bias. That said, perception still counts for a lot.

Facebook, for its part, also attempted to gag the story though to a much lesser degree, claiming that it would limit dissemination until the story could be independently fact-checked. While Facebook currently exempts politicians, for obvious reasons, from routine fact-checking, the same does not hold for independent organizations like the New York Post.

Facebook has actually been on a recent banning spree, including announcing just recently that after 15 years it would ban Holocaust denials, anti-vaccination content, political advertising immediately surrounding an election, and QAnon conspiracy accounts.

Whenever online platforms start meandering into the censorship world they open themselves up to criticism from their users, most prominent among them, the ‘whadabout’ and ‘how come’ critiques: how can you censor this? What about how you didn't censor that? How come you are not censoring them, they are clearly deserved of censorship. Regardless of the legitimacy of such complaints, censorship always creates animosity toward the platforms, which could result in more elected officials seeking out ways to reign their powers in.

In fact, the actions of both Twitter and Facebook do not bode well for the already increasing hostility toward the large tech companies within the United States Congress. Currently, there are at least two ongoing legal efforts to limit the power that these companies wield over us all: either through antitrust law or via revision of Section 230 of the 1996 Communications Decency Act, a topic we have written about here in the past.

In the end, these efforts by Twitter and Facebook, regardless whether their intentions were noble or partisan, or whether they were simply expressing their constitutionally protected free speech rights, are likely going to cost these companies dearly with some in Congress angrily demanding to subpoena Twitter CEO Jack Dorsey.

Big Tech’s fall from grace was inevitable: there are likely very few people who want Silicon Valley, or anyone else for that matter, to be the final arbiter of what you can or cannot be exposed to online, nor should there be. The late philanthropist and successful retailer Sy Syms, famously noted that "an educated consumer is our best customer." The same ought to be said for modern consumers of information, now more than ever. With all we know about fake news and the current infodemic, it ought to be the consumers themselves that vet what they read. Who else can they trust implicitly to do it? Partisan and polarized America no longer has a cadre of trusted voices.

In addition to the most recent subpoena, Congress had already penciled in testimony from the CEOs of Facebook, Google, and Twitter later this month with regard to both antitrust and Section 230 concerns. These recent efforts by Twitter and Facebook will likely make the hearing even more antagonistic and bipartisan. Recall that it was Senator Elizabeth Warren, a far-left progressive Democrat who campaigned on the idea that Big Tech was too big, a crusade that arguably started with a liberal think tank. Now, they have angry enemies on the Right as well.

While it may be difficult to apply standard antitrust metrics to Silicon Valley technology companies, especially as they do not charge consumers outright for their services, there is the fear that their near-monopolistic powers can nevertheless harm consumers, especially in the information age. Moreover, conventional wisdom had it that while the Democrats were keen on applying antitrust laws to dismantle Silicon Valley, the Republicans who still hold the balance of power in the Senate, and who tend to be more favorable to big business, might have considered a deal. The actions of these past weeks have substantially hurt the Tech companies’ chances of finding that deal with Republicans.

But even if they can carve out an antitrust deal, it may not save them from losing the other battle: the economically valuable protections granted by section 230. Section 230 has always been a bugaboo of President Trump, even before the Hunter Biden fiasco. However, just a day after the Hunter Biden story was quashed by Twitter, the Federal Communications Commission (FCC) --ostensibly an independent nonpartisan agency within the U.S. government, but who’s commissioners and chairman are chosen by the President-- issued a statement indicating its intent to clarify (and likely reduce) the scope of protections provided by Section 230. Some have raised doubts as to whether the FCC has the authority to do so outside of the legislative process, including the authors of the original bill itself. The FCC countered that contention in a blog post later this week.

The legislature has already indicated its interest in revisiting Section 230 and a number of competing bills have been suggested, including the Senate's Platform Accountability and Transparency Act (PACT) and the more recent iteration from the House or Representatives: Protecting Americans from Dangerous Algorithms Act. It's thought that this proposed bill is related to a recently filed lawsuit against Facebook for allowing violence resulting in death to be promoted on its site.

Again, like the aforementioned antitrust concerns with Big Tech, dislike for Section 230 is also bipartisan. Regardless of who wins the next elections, we will likely eventually see some changes to this section instituted by the legislature, limiting the immunities 230 provides.

Not to be left out, the third branch of the U.S. government, which arguably provided much of the initial backing for the current state of affairs in its ruling Zeran v. AOL almost a quarter of a century ago, has also weighed in on revising Section 230 and its seemingly expansive scope. In a recent denial of a petition for a writ of certiorari (to be eligible to argue a case before the U.S. Supreme Court, the petition for cert must be granted by the court) conservative justice Clarence Thomas argued that the courts have been interpreting Section 230 too liberally, granting "sweeping immunity" for the content that is hosted without any fear of being held liable through litigation.

However, unlike the other two branches of government, Justice Thomas isn't in that big of a rush to alter Section 230. He is willing to wait for the right case to come along so that he can eviscerate Section 230 and make social media companies more like traditional publishers. who, for example, is liable for libel that it prints, even if it doesn’t have an author?

No matter which branch of government eventually acts, the social media world as we know it will likely radically change if Section 230 were to fall or be severely curtailed. Consider that every minute Instagram users post 347,222 stories, Twitter gains 319 new users, Whatsapp users share 41,666,667 messages, and Facebook's 1.69 billion users share 150,000 messages. Is it reasonable to suggest that internet platforms can be held liable for all of that content? Even with advanced AI like Facebook's new polyglot AI M2M-100, it is unlikely that anyone can actually police these gates of Hell.

Prof. Dov Greenbaum is the director of the Zvi Meitar Institute for Legal Implications of Emerging Technologies at the Harry Radzyner Law School, at IDC Herzliya