Josh Hawley’s War Against Big Tech Could Bring Down Small Startups

December 8, 2018

By Bryan Lowry

WASHINGTON — Josh Hawley wants to be seen as the U.S. Senate’s watchdog of tech giants.

But his efforts could actually result in the big companies, which he says he wants to rein in, being the only ones left healthy. Under his plan, small startups could be hurt.

The Republican senator-elect from Missouri made appearances this week on Fox News and Radio America to promote the idea of rolling back or tweaking a 1996 law that enabled Facebook and other social media sites to grow into businesses worth billions.

“These tech companies — Facebook, Google, Twitter — they have gotten huge. They have gotten powerful. They have gotten rich on the backs of this special immunity that they get from the federal government,” Hawley told Fox News host Tucker Carlson in an interview Tuesday night. “And I think it’s time we ask some hard questions.”

But tech policy experts say that changing the law would actually have a disproportionately damaging impact on startups and solidify the big tech companies as the only players still able to operate.

Hawley, whose boyhood hero was the trust-busting President Teddy Roosevelt, has called for hearings to determine whether big tech companies should continue to benefit from the protections in Section 230 of the 1996 Communications Decency Act.

The law generally protects social media platforms from being sued for libel, stating that interactive computer services shall not “be treated as the publisher or speaker of any information provided by another information content provider.”

Under this law, Twitter isn’t generally liable for what its users tweet and YouTube doesn’t have to fact check all of the videos posted to its site like a news network. Instead, individual users are responsible for what they share on these sites.

In his Fox News interview, Hawley derided the law as a sweetheart deal for the tech giants.

But the law also protects small sites and startups.

Carl Szabo, vice president and general counsel of the tech industry group NetChoice, said that rolling back the law would make it nearly impossible for some internet startups to operate.

“The liability would just be too great to the point where only incumbents with armies of lawyers and dollars could even conceive of operating,” he said.

Rolling back the law would leave social media sites with two options: Either they’ll have to step up their monitoring of posts and restrict what users can say to protect against libel lawsuits or let user generated content go completely unchecked to avoid being treated as publishers.

Facebook and Twitter would have the resources to adjust to the change, but startups would not, argued Szabo, who serves as adjunct professor at the George Mason Antonin Scalia Law School in Virginia

“Ironically, if the goal is to take down the large tech companies, eliminating (this part of the law) will almost assuredly prevent competition from new entrants,” he said.

Hawley’s political team declined to make the senator-elect available for an interview on the technology issue when McClatchy requested a comment last week.

The senator-elect’s team also did not answer a question about the potential impact to startups if the law is changed.

Hawley first called for hearings on the issue last week after Twitter temporarily suspended the account of Jesse Kelly, a former Marine and conservative media personality, for an unspecified violation of the platform’s users rules.

“They are censoring conservatives,” Hawley told Carlson. “They are censoring based on political viewpoint. My question is should they really be getting this special immunity from the government if they’re also going to act like censors.”

Hawley said that in exchange for the liability protection, services such as Twitter are supposed to avoid exercising editorial control.

This argument demonstrates a fundamental misunderstanding of the law, said Aaron Mackey, a staff attorney focused on free speech issues at the San Francisco-based Electronic Frontier Foundation.

The text of the law explicitly empowers interactive computer services with the ability to moderate content and restrict access to material considered “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Congress passed the first major change to the law this year, tweaking it to hold websites liable if their platforms are used for sex trafficking. Hawley’s predecessor, Democratic Sen. Claire McCaskill, championed the change.

Sen. Ron Wyden, D-Ore., one of the authors of the original law, was one of two senators to vote against that change. He’s warned against additional changes being floated by Republican critics of the law.

Wyden said in statement these critics misunderstand both the law and the First Amendment.

He said the law “is about making sure startups can get off the ground before hiring teams of lawyers to ward off endless lawsuits” and “has nothing to do whatsoever with ensuring that platforms are somehow balanced politically.”

Wyden explained that “the idea that the government should be mandating something like ‘balanced political speech’ is patently unconstitutional and goes against everything conservatives said they believe about the government interfering with private companies.”

Rolling back the law could encourage sites to ignore hate speech and harassment to avoid being tagged as publishers, Mackey said.

“It would just sort of quickly descend into a vitriol pit,” Mackey said.

The law originated in response to a string of court cases in the 1990s dealing with whether online bulletin boards and other web services were liable for the content users posted.

“The courts were sort of confused about how to treat these new services,” said Tom Struble, technology policy manager at the R Street Institute, a Washington-based think tank that advocates for free market solutions.

“Is it more like telephones? Is it more like newspapers? Congress made the decision that no, they’re not newspapers and don’t treat them that way,” Struble said. “They’ve been treated as communication networks and I think that’s been a generally good thing.”

Struble said the law aided the growth of tech’s current giants, but he argued that changing it would have a disproportionate impact on new startups because it would drive up the cost of liability insurance.

The push to change the law has gained momentum in recent months. President Donald Trump’s administration floated the idea in August after the president claimed Google search results were biased against him.

Claims that Google has manipulated search results were one reason that Hawley launched an investigation into the company in 2017 in his role as state attorney general.

The investigation was announced four days after prominent Google critic Peter Thiel, the co-founder of PayPal, contributed $5,400 to his Senate campaign.

During that campaign, Hawley often touted his efforts to hold the industry accountable. He launched an investigation into Facebook in April.

His official government website has a page promoting the tech investigations — which are ongoing and have yet to result in findings, according to his office.

Hawley’s opponent, McCaskill, was fourth among all candidates with more than $270,000 from the industry compared to Hawley’s $6,700.

Struble, a former aide for Republican Sen. Jerry Moran of Kansas, said the industry’s campaign contributions to Democrats have helped fuel the narrative within conservative circles that big tech is anti-conservative.

Szabo said this is the wrong point for Republicans to bring up in the technology debate.

“The real question is do we want government to tell businesses how to operate and should we have government tell businesses that they must adopt whatever views are of the party in power?” Szabo said.

———

©2018 McClatchy Washington Bureau

Visit the McClatchy Washington Bureau at www.mcclatchydc.com

Distributed by Tribune Content Agency, LLC.

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