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It’s Not 230 You Hate, It’s Oligopolies

As we continue to hear calls to repeal or change Section 230, it appears that many people have conflated a law that affects the tech giants (among many others) with Big Tech as a whole. Section 230 is not a gift to Big Tech, nor is repealing it a panacea for the problems Big Tech is causing—to the contrary repealing it will only exacerbate those problems. The thing you hate is not 230. It’s lack of competition.

Section 230 stands for the simple principle that the party responsible for unlawful speech online is the person who said it, not the website where they posted it, the app they used to share it, or any other third party. That is, the only person responsible for your online speech is you. It has some limitations—most notably, it does nothing to shield intermediaries from liability under federal criminal law—but it is, at its core, a common-sense law that incentivizes new services to allow users to share and store expression. And Section 230 isn’t just about Internet companies, either. Any intermediary that hosts user-generated material receives this shield, including nonprofit and educational organizations like Wikipedia and the Internet Archive.

What Section 230 does not do is grant Big Tech companies a magical shield against competitors or entrench their power. In fact, it does the opposite. If a new Internet startup needed to be prepared to defend against countless lawsuits on account of its users’ speech, startups would never get the investment necessary to grow and compete with large tech companies. Changes to Section 230 would not bring Facebook to heel. Facebook will be able to afford the lawyers, the staffing, or whatever other costs that change would bring. You know who would not? Any service trying to compete with Facebook. This may be why Facebook has endorsed changes to Section 230.

So while many people rightly are concerned with the power of companies like Amazon, Apple, Facebook, and Google, the uproar around Section 230 is misplaced. It’s not 230 that is the problem. It’s oligopoly.

Billions of people use Facebook and Google every month. Their reach is larger than the population of most countries. There are two downsides to large size: first, it is almost impossible to have transparent and equitable terms of service consistently enforced at that size. Second, because these are not bespoke services catering to specific needs and wants of users, size is their value. It’s what their ad services is selling. It’s also why it’s such a big deal when accounts are lost.

People should be able to seek out the platform that works for them. The one that, say, puts a premium on fighting harassment. Or wants to be a safe space for all knitters. Or makes promises about privacy. Or, yes, claims to be about “free speech.” It should not be an obligation to be on any platform in order to participate in society. Yet many small businesses and individuals feel like they do not have a choice. That if they are not on Facebook or Google, they may as well not exist.

A recent article on CNN about the implosion of the alt-right pointed out that hateful rhetoric lost steam once it was only on platforms where everyone agreed with it. There were no journalists there to give them airtime or column inches. There were no “libs” to “own,” so it sputtered out.

Many tech companies have operated under the assumption that the only important metric is growth. Start-ups burn money on growing as large as they can as fast as they can, often with the goal of being bought by one of the Big Tech companies. Big Tech has encouraged this by ramping up mergers and acquisitions so that no company ever becomes a true threat to them, in what is known as the “kill zone.”

Instead of changing Section 230, we need a change in antitrust law and enforcement. We need closer scrutiny of mergers and acquisitions—it’s a good sign that the proposed Visa and Plaid merger fell apart. We need new ways of thinking about the harm done by companies—not just whether they are making us pay too much. Facebook and Google are free, so perhaps we should consider privacy harms, workers’ rights harms, or harms to our ability to repair or truly own our digital media or technology. We need to punish companies who claim they will not commingle our data when they buy new services and then go back on their promises. We need to be concerned with privacy legislation, and give everyone a private right of action for privacy harms, rather than make companies liable for the speech of its users.

And where the badness of these companies is inextricably linked to their bigness, we need to explore ways to break them up. But, as the long list of other issues listed above attests, even that is only part of the solution.

Mostly, what we need to understand is that there is no single change to the law that will fix Big Tech. It’s much more complicated than Section 230. It’s more complicated than just breaking these companies up. We need to change the entire ecosystem that Big Tech has manipulated to protect its power. And it starts with competition, not Section 230.


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About The Author

Katharine Trendacosta

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. We work to ensure that rights and freedoms are enhanced and protected as our use of technology grows. Visit https://www.eff.org

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