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Why Repeal Not Reform Section 230?

April 27, 2021

Repeal of Section 230’s 1996 lawless Wild West Internet policy is inevitable because it is based on an immoral premise and has inflicted severe damage to America’s constitutional liberties, national security and economic prosperity.

Repeal vs. Reform

Repeal of Section 230 would serve America and Americans much better than reforms that perpetuate lawless U.S. Internet policy and guarantee Big Tech remains unaccountable and Americans remain unprotected online.

Repeal would affect a major national policy change, while reform incrementalism would preserve the online status quo.

Repeal would be a comprehensive and constitutional solution, while content moderation reforms are piecemeal solutions that carry constitutional risks.

Repeal would empower 2022 and 2024 voters with a national policy conversation that asks candidates if and how they are going to ensure Big Tech is accountable and Americans are protected online?

Most importantly, repeal of Section 230 and its lawless U.S. Internet policy would legally restore the Constitution, Bill of Rights, rule-of-law, right and wrong, due process, redress and a duty of care online — without new regulation.

Reforms imagine Congress can constitutionally regulate free speech online, when that is largely the Judicial Branch’s constitutional role, to adjudicate case by case, what is constitutionally protected free speech versus what is illegal speech.

Repeal Is Inevitable

America’s one Internet policy and law, Section 230, is based on what Congress knew about the nascent 1996 Internet, which had bulletin-board functionality and dial-up speed, was used by one U.S. senator and the other several million Americans that used it did so for an average of thirty minutes a month.

Section 230’s lawless Internet policy de-governed and conformed America’s constitutional system to the utopian and anarchic Internet policy experiment of an amoral, borderless, permissionless digital commons, open to everything and everyone, with no central authority.

Today that lawless policy applies by default to everything everyone does online everywhere in the U.S. for work, life and play in 2021, and applies without any online First Amendment rights, recourse or redress, forever, until Section 230 is repealed or overturned by the Supreme Court.

Let’s see how twenty-five years of online lawlessness has inflicted severe damage to America’s constitutional liberties, national security/public safety and economic prosperity.

Constitutional Liberty Damage

Section 230’s immoral lawless policy premise rejected the Founding Fathers’ Constitution, Bill of Rights and their cornerstone, limited-government, Judeo-Christian moral premise that “every person be subject to the governing authorities” per Romans 13:1.

Our Founding Fathers presciently warned us: “…morality is a necessary spring of popular government” — George Washington; “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other” — John Adams.

Prior to 1996, the Internet was not regulated so Section 230 was not deregulation, but a de-governing experiment that abdicated all federal and state regulation to private corporations.

The feudal damage to our constitutional liberty is Section 230’s de facto, supra-legal, Franken-system where attackers and offenders have impunity and the attacked and offended are abandoned online.

What has filled this vacuum?

A Big Tech oligarchy of Google, Facebook, Amazon, Twitter, et al, have asserted themselves as virtual global governors and unaccountable private regulators via opaque algorithmic rule of code and take-it-or-leave-it corporate Terms of Service and End User Licensing Agreements.

Big Tech taught the whole world a lesson in unleashing its Section 230 supreme superpower by unilaterally  deplatforming President Trump and his supporters online in January.

Now Big Tech is appreciated as an existential threat to governments, leaders, political parties, movements, elections, opponents, competitors and their users — without redress.

The feudal fealty lesson here is everyone now is a digital vassal and must go through and depend on the Big Tech overlords for all online data and interactions.

Section 230 impunity also strongly incentivizes automating away workers, jobs, industries and communities; and dehumanizing users as products and data to sell, and children as lab rats to test, addict, deform, depress and abuse with impunity.

National Security/Public Safety Damage

Since 1996, Section 230’s lawless Internet policy de facto has unilaterally surrendered America’s online borders and sabotaged much of America’s online national defense and security.

Online, America simply cannot protect itself and its people, because it irrationally assumes the Internet only enables good never evil.

U.S. cybersecurity is an unmitigated disaster that is only getting worseChina and Russia can attack with impunity thanks to Section 230.

In America, who thinks it is a good national policy outcome that no one and nothing is safe and secure online?

Economic Prosperity Damage

Section 230 empowers, subsidizes and advantages Big Tech winner-take-all impunity, which severely damages economic prosperity and opportunity for all Americans, workers, and entrepreneurs.

The Internet Association explains Section 230’s winner-take-all advantages for Internet platforms as “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 has never been a free market. It is a digital commons of cyber-socialism and crony capitalism given the massive and rampant corporate welfare and regulatory capture involved.

Big Tech’s winner-take-all impunity empowers Internet platforms to capitalize benefits and socialize costs. It has cost Americans ~$5 trillion in market losses from four Internet market bubbles.

My estimate is it has been a ~$3 trillion drag on US GDP economic growth from 2012-2019; and that the U.S. taxpayer has cumulatively subsidized Big Tech by over $3 trillion.

The 1% of S&P 500 stocks that are Big Tech comprise 25% of the S&P 500’s value, and they have captured most of the increase in market wealth in recent years.

Three Big Tech gatekeeper monopolies dominate consumer spending and decimate competition.

Conclusion  

Section 230’s lawless Internet policy is a self-defeating disaster damaging America’s liberty, security and prosperity that demands repeal or overturning in the Supreme Court.

America’s 2022 and 2024 voters overwhelmingly want Big Tech to be accountable and Americans to be protected online.

That is not too much to ask of their elected representatives.

Section 230 repeal is simple.

[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