Jack Dorsey is leaving Mark Zuckerberg to fight Section 230 alone

An activist wearing a paper mache Mark Zuckerberg mask holds a sign that says “Regulate me!”
An activist wearing a paper mache Mark Zuckerberg mask holds a sign that says “Regulate me!”
Image: REUTERS/Francois Walschaerts
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Facebook CEO Mark Zuckerberg is ready to cut a deal. At a March 25 congressional hearing on tech companies’ role in spreading misinformation, Zuckerberg called on lawmakers to reform Section 230, the all-important provision of the 1996 Communications Decency Act that protects platforms like Facebook from being sued over anything their users post.

Angry politicians from both sides of the US political spectrum have called for the repeal of Section 230—for vastly different reasons. Democrats say the law protects tech companies that haven’t done enough to stop the spread of misinformation, while Republicans want to punish platforms for their alleged persecution of conservative users. Without Section 230’s protections, tech companies would be exposed to immense legal risk that could upend their current business models, which rely on letting users post content with minimal moderation. Few companies are more at risk than Facebook, which has been implicated in everything from spreading pandemic misinformation to helping terrorists organize attacks.

Zuckerberg testified remotely before the House Committee on Energy and Commerce alongside Google’s Sundar Pichai and Twitter’s Jack Dorsey.  Although the hearing was meant to focus on misinformation, it became an all-hands drubbing of the CEOs over everything from their market dominance to the fate of a local Republican party organization’s Facebook page. Much of the conversation centered on Section 230 which lawmakers appeared to see as leverage to demand commitments from the technology executives.

The hearing underscored just how far apart the CEOs have drifted when it comes to the law that has been credited with “creating the internet” at a moment when Section 230 is under attack from all sides of the political spectrum.  Zuckerberg hopes to prevent politicians from scrapping the law by pushing for moderate reforms. But Pichai and Dorsey side-stepped Zuckerberg’s proposal to water down Section 230: Pichai delivered his strongest defense of the law to date. Dorsey avoided talking about it almost entirely.

At a time when US president Joe Biden has called for Section 230 to be “revoked, immediately,” and leading members of both parties filing competing bills to lift the law’s protections, tech CEOs were unable to present a unified front. That may hamper their ability to squash repeal efforts or guide the conversation on reform toward an industry-friendly alternative.

Zuckerberg: Reform Section 230

In his opening testimony, Zuckerberg stressed that Section 230 protections should depend on companies’ moderating capacity—not whether those systems stop a particular piece of harmful content from spreading.  Zuckerberg proposed stripping tech companies of their Section 230 liability protections if they do not have “adequate systems in place to address unlawful content” and remove it (he declined to explain what “adequate systems” would look like). By focusing on adequate processes, Zuckerberg proposed much a lower bar than holding companies accountable for their outcomes.

Image for article titled Jack Dorsey is leaving Mark Zuckerberg to fight Section 230 alone

It’s a subtle but important shift from the standard Zuckerberg called for in a previous congressional appearance in October, when he focused on outcomes.

A snippet of Zuckerberg's Oct. 28, 2020 testimony that reads: "As we talk about putting in place regulation or reforming Section 230 in terms of what we want to hold companies accountable for, I think that what we should be judging the companies on is how many people see harmful content before the companies act on it."

At the time, Zuckerberg suggested “a third party” should be responsible for judging whether a company’s moderation systems are good enough to preserve a company’s liability protections. He also said massive platforms like Facebook should be held to a higher standard than small start-ups that don’t have the same resources to invest in teams and algorithms to detect illegal content.

The chief executives testifying with Zuckerberg did not rally to his position. When asked if they agreed with Zuckerberg’s proposal, Pichai politely said he agreed with some of Zuckerberg’s unrelated ideas on transparency, while Dorsey said it would be too hard to differentiate between the large platforms that get more scrutiny and the smaller platforms that get more leeway.

Pichai: Save Section 230

Google’s Pichai responded to Zuckerberg’s call for compromise with a full-throated defense of historical liability protections. “Section 230 is foundational to the open web,” he said in his opening remarks. “It allows platforms and websites, big and small, across the entire internet, to responsibly manage content to keep users safe and promote access to information and free expression.”

Pichai rejected Zuckerberg’s call for reform. In earlier testimony, the Facebook founder said “the Internet has changed dramatically” since the 1996 Communications Decency Act was enacted, and the law “would benefit from thoughtful changes to make it work better for people.” Pichai made no such qualifications:

A snippet from Sundar Pichai's testimony on March 25, 2021 that reads: "In the fight against misinformation, Section 230 allows companies to take decisive action on harmful misinformation and keep up with bad actors who work hard to circumvent their policies. Thanks to Section 230, consumers and businesses of all kinds benefit from unprecedented access to information and a vibrant digital economy."

Back in October, Pichai offered a veiled warning to lawmakers about the perils of altering Section 230.

A snippet from Pichai's testimony on Oct. 28, 2020 that reads: "I would urge the committee to be very thoughtful about any changes to Section 230, and to be very aware of the consequences those changes might have on businesses and customers."

In his prepared testimony today, however, Pichai gave lawmakers a much sterner warning.

A snippet from Pichai's testimony on March 25, 2021 that reads: "We are, however, concerned that many recent proposals to change Section 230—including calls to repeal it all together—would not serve that objective well. In fact, they would have unintended consequences—harming both free expression and the ability of platforms to take responsible action to protect users in the face of constantly evolving challenges."

Rather than alter Section 230, Pichai suggested tech companies could respond to concerns about their moderation systems by being more transparent about how they work.  He suggested tech companies should clarify their moderation policies, notify users when content is removed and give them a chance to appeal, and publicly report how well moderation systems are working.

Dorsey: Did someone say Section 230?

Twitter’s CEO was conspicuously silent about the internet’s liability shield. While Zuckerberg and Pichai dedicated sections of their written testimony to laying out their divergent visions for Section 230, Dorsey didn’t mention the law once in his prepared remarks. Instead, he focused on increasing transparency in Twitter’s moderation practices to regain users’ trust.

Dorsey’s most extensive comment on Section 230 was his brief critique of Zuckerberg’s proposal: “I think it’s going to be very hard to determine what’s a large platform and a small platform and that may incentivize the wrong things.”

Dorsey’s reticence today stands in stark contrast to his written testimony in October, when he hammered on the point that rolling back Section 230 would give large platforms an advantage over small ones. Large platforms, he reasoned, have more resources to moderate content and defend themselves in court than scrappy startups.

A snippet from Jack Dorsey's testimony on Oct. 28, 2020 that reads: "As we consider developing new legislative frameworks, or committing to self-regulation models for content moderation, we should remember that Section 230 has enabled new companies—small ones seeded with an idea—to build and compete with established companies globally. Eroding the foundation of Section 230 could collapse how we communicate on the Internet, leaving only a small number of giant and well-funded technology companies."

Perhaps foreshadowing his relative silence at today’s hearing, Dorsey didn’t actually read this passage when addressing lawmakers in October. Instead, he offered a more toned-down summary. “It’s critical as we consider these solutions we optimize for new startups and independent developers,” he said. “Doing so ensures a level playing field that increases the probability of competing ideas to help solve problems. We mustn’t entrench the largest companies any further.”