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The Achilles Heel Of Big Tech’s Cancel Power

May 20, 2021

It is in the raw political interests of the government’s incumbent party and unchecked Big Tech to collectively cancel the opposition party online to retain control of their levers of power long term.

Big Tech’s unchecked.

If the four CEOs of Google, Facebook, Twitter and Amazon collectively could cancel online a sitting Republican U.S. president and his political allies with impunity in January, what checks them from collectively cancelling tens of millions of Republicans again?

What checks Big Tech from using their Section 230 impunity in the 2022 midterm elections and collectively canceling many Republican Senate and House candidates, their political allies and online followers that express broadly held Republican views that Big Tech deems objectionable?

It is in the raw political interests of the government’s incumbent party and unchecked Big Tech to collectively cancel the opposition party online to retain control of their levers of power long term.

Do any checks stand in the way of “The Collective Cancel” political precedent becoming practice?

We the people and the Constitution do, via repeal and/or a successful constitutional challenge of Section 230’s unchecked impunity.

What is the Achilles Heel of Big Tech’s cancel power?

It is the tentpole assumption that Big Tech are pure “private” enterprises, so they have unlimited corporate constitutional freedom of speech to mass-censor others. That assumption is false and not supported by the evidence.

They are legally defined as “interactive computer services” (ICS) in Section 230.

Section 230 effectively deputizes Big Tech ICSs to be quasi-government-agents for regulating speech online in ways that the U.S. Government (USG) itself cannot constitutionally do.

The overwhelming evidence below indicates Google, Facebook, Twitter and Amazon are essentially enabled, empowered and subsidized, quasi-government-agents of speech regulation, and dependent on special government treatment.

Without many major enabling USG actions, Big Tech would not exist.

It invented the Internet’s essential enabling protocol, TCP/IP, and it created the original enabling Internet TCP/IP packet switching network. And until 2016, the Department of Commerce contractually controlled the Internet’s operationally-indispensable, enabling “root zone” file.

Without many major USG enabling policies and Section 230, Big Tech companies could not be global, universal and dominant like they are.

To promote innovation and competition, the FCC for decades ensured tech data services uniquely would not be regulated or have public interest duties like all other communications services.

To promote the Internet and competition, Congress in Section 230 of the 1996 Communications Decency Act ensured only ICSs would operate “unfettered by Federal and State regulation.”

To promote ecommerce globally and universally, the Clinton-Gore Administration issued a Framework for Global Electronic Commerce, that was private sector led and self-regulated. It then convinced most foreign governments to adopt the enabling U.S. ecommerce framework.

To promote decency online, Congress created a de facto quid pro quo relationship and implicit conditional contract in Section 230 between the USG and ICSs.

“No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

In 1996, Section 230 de facto deputized ICSs as quasi-government agents of speech regulation.

The evident quid pro quo agency here is the USG endowed ICSs with the exceptionally valuable economic benefit of broad immunity to regulate free expression online, conditioned on a good faith, explicit fiduciary decency duty to the public.

Pertinent to Big Tech’s mass censorship impunity, a fiduciary is bound legally and ethically to act in the other’s best interests, i.e., Americans freedom of speech over Big Tech’s corporate freedom of speech.

Without the USG’s Section 230 quid pro quo, Big Tech would not have the unaccountable power to do “The Collective Cancel.”

Big Tech openly admits its deep dependence on the government maintaining Section 230 as is.

The Internet Association concedes Section 230 provides “essential liability protections that have allowed Internet platforms to scale and diversify” via a shield … from liability” that affords no “requirements to police their users actions.”

The Internet Association also defends its Section 230 censorship power as “important” because it “ensures platforms can provide a place for users to collaborate without being held liable or responsible for censoring user content.”

In sum, a Constitution predicated on preserving liberty and preventing tyranny with checks, balances and rights could never authorize overriding them to deputize private entities with unchecked government impunity to mass censor the political speech of a quarter of America’s population.

If those at risk of losing their Constitutional liberty here do not try to challenge Section 230’s constitutionality and do not try to repeal it constitutionally, they will lose it by forfeit.

Edmund Burke warned “The only thing necessary for the triumph of evil is for good [people] to do nothing.”

[Originally posted on Daily Caller]

Author
Scott Cleland is a precursor: a proven thought leader with a long track record of industry firsts.
scleland@precursor.com @scleland