The current trend to deploy false, distorted, selective, and deliberately misleading information in pursuit of various objectives may be a more troubling contagion than COVID-19. We see it in traditional media with "journalists" who now view their role as the promotion of narratives rather than the objective account of facts. Big Tech now imposes its ideologies on vast swaths of America while answering only to executives, principal shareholders, and employees.
For example, Google, Twitter, Facebook, Apple, and Amazon inflicted a digital death sentence on the social media application Parler by withholding the infrastructure and linkages on which Parler depended, a practice known as "deplatforming." In other cases, malleable terms of service agreements provide an excuse for selective censorship, deplatforming, or manipulation of the search ranking algorithms effectively to bury content. This was blatant during the election, as legitimate stories about Hunter Biden were buried. And Amazon (i.e., Jeff Bezos) removes books it alone finds objectionable, such as Ryan Anderson's When Harry Became Sally, which is about transgender issues. Bezos can even deploy his wholly owned mouthpiece, the Washington Post, in support.
Ominously, many of the civil rights enumerated in the Constitution and its amendments are effectively being abridged by Big Tech companies, which often hold more power than the government over our day-to-day existence. Few would function "normally" without Amazon, Google's search engine, app stores, Twitter's forum, and Facebook's "communities," but these companies operate with impunity because the public's constitutional protections do not apply to private entities, only to actions of government.
This limitation could not have been envisioned by the drafters of our governing documents and now merits reconsideration. It might be circumvented by virtue of the fact that the liability protection for censorship granted to these entities under Section 230 of the Communications Decency Act can be construed to "turn private action into state action," as the Supreme Court ruled in Railway Employees' Department v. Hanson in 1956.
Big Tech companies essentially function as public utilities yet are not regulated as such. Would we accept a phone company scanning our calls and interrupting for voice ads or even cutting off a connection in real time? But we allow Big Tech to do a similar thing to us all. The irony is that, for constitutional reasons, the government cannot directly censor the censors.
Another challenge is that never before have individuals had a digital soapbox with so many listeners, which is ironic given some of the false, misleading, manipulated (e.g., deepfake videos), or otherwise objectionable content. As Mike Solana of venture capital firm Founders Fund wrote, "I think it's possible, for example, that a world in which any single person has direct, instant access to 100 million people is unstable in a way we haven't yet fully appreciated."
This situation demands action. A definitive solution must be more creative than simply removing the protections of Section 230, which would expose internet media to the same legal liabilities as traditional media. That would be counterproductive because the response would inevitably be to institute more censorship as protection. Even without Section 230, traditional media have found that leveraging ideological polarity is a profitable pursuit.
Unlike the constraints on airtime or print space, the internet has no effective limit on bandwidth, undermining capacity-related objections to open expression. This contrast could facilitate reform through new legislation that would create an explicit cause of legal action for any source of information or products that, without just cause, have been unjustly censored, "shadow" banned, or deplatformed on any widely used service. The burden would shift to the service provider to provide an explanation that would be consistent with our constitutional protections and rights.
Such legislation would invalidate terms of service contracts that fail to conform. The bill should provide objective categories, such as child pornography, incitement to imminent violence, claims that can be reasonably foreseen to create tangible harm (such as anti-vaccine disinformation), or actively spreading known falsehoods of consequence, as "safe havens" for content management. It would remove viewpoint or political ideology as a justification for censoring, delisting, ghosting, or deplatforming. And any successful action taken under this statute should have a carefully crafted compensation formula affording the victim a better chance at achieving redress while compellingly dissuading violations of the bill.
Content that offends or misinforms would persist, but that is the price of a society with freedom of expression. Nobody is forced to purchase, read, or "follow" anything or anyone. The decision-making power would return to the consumer. If consumers want to reside in an echo chamber of their own beliefs, so be it. In other words, put everything that is not poisonous, regardless of how it tastes, on the information buffet table and let the consumer consume.
The current behavior by Big Tech assumes that it can "properly" arbitrate what is acceptable or accurate, but that vests far too much power in unelected and undeserving parties.
We don't advocate regulation of tech companies lightly. Both of the authors have been technology-focused our entire working lives, and it is painfully obvious to us that the time has come to rein in Big Tech's abuse of power.
Andrew Fillat spent his career in technology venture capital and information technology companies. Henry Miller, a physician and molecular biologist, is a senior fellow at the Pacific Research Institute. They were undergraduates together at the Massachusetts Institute of Technology.