Regulatory Challenges: A Free Speech Problem— and a Tech Problem Until now, Congress has largely put its faith in companies’ abilities to selfregulate. But this has clearly not worked. We have reached a tipping point—a moment in which protecting tech companies’ abilities to build and innovate unfettered might actually be putting our democracy at grave risk. We have come to realize that we have a serious problem on our hands, and that the government must step in with regulation. But what should this regulation look like? There is no clear or comprehensive solution to these problems right now. But we know that we need more information—likely through government-mandated transparency and impact-assessment requirements—in order to assess the potential for damage and propose viable solutions. It is also clear that we need a strong federal privacy law. These recommendations will be explored in greater depth in the second part of this report series.
We have reached a tipping point—a moment in which protecting tech companies’ abilities to build and innovate unfettered might actually be putting our democracy at grave risk.
Members of Congress are understandably eager to hold tech platforms accountable for the harms they enable, but should resist the temptation of quickfix solutions: not all types of regulation will actually solve the problems of disinformation and violent extremism online without also seriously corroding democracy. We urge policymakers to refrain from instituting a broad intermediary liability regime, such as by revoking or dramatically revising Section 230 of the 1996 Communications Decency Act (CDA). Section 230 provides that companies cannot be held liable for the content that their users post on their platforms, within the bounds of U.S. law. It also protects companies’ ability to develop their own methods for identifying and removing content. Without this protection, companies that moderate their users’ content would be held liable for damages caused by any content that they failed to remove, creating strong incentives for companies to censor users’ posts. Instead, Section 230 allows companies to do their best to govern the content on their platforms through their terms of service and community standards.
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