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Devin Nunes discovers the joy of regulating the internet

Devin Nunes discovers the joy of regulating the internet
Rep. Devin Nunes (R-Tulare) recently filed a $250-million defamation lawsuit against Twitter and three of its users, including “Devin Nunes’ Mom” and “Devin Nunes’ Cow.” (Jose Luis Magana / Associated Press)

Every time I hear a Republican complain about Facebook, Twitter or Google, I think, “Wait — aren’t you the ‘hands off the internet’ party?”

The GOP, after all, has been the main obstacle to net neutrality regulations, the rules on broadband providers that are designed to protect the internet from meddling by its gatekeepers. When Republicans took control of the Federal Communications Commission in 2017, they quickly erased almost all the net neutrality rules adopted by their Democratic predecessors, then renounced the commission’s power to stop broadband providers from doing … anything.

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Now contrast that bold deregulatory step with the comments and efforts by the likes of Rep. Devin Nunes (R-Tulare) and Sen. Josh Hawley (R-Mo.). They’re taking aim at what may be the most powerful bit of pro-internet legislation Congress has ever enacted, Section 230 of the Communications Decency Act.

The party’s position seems to boil down to this: We’re fine with letting the free market solve problems online until they become our problems.

Under Section 230, websites cannot be held liable for the unedited content posted by their users. Together with the Digital Millennium Copyright Act, Section 230 has protected sites that rely on user-generated content (especially social media sites like Facebook, Twitter and YouTube) from being sued out of existence when their users post something that violates the law.

Bear in mind that Section 230 doesn’t stop people from suing the living daylights out of people for libel, defamation, extortion or any other tort. It simply tells aggrieved parties to sue the person who did the deed, not the site that provided the offending content a home online.

That principle does not inform the $250-million defamation lawsuit that Nunes filed this week against Twitter and three of its users, seeking to hold them all liable for the harsh personal critiques the three users leveled against him. One of the critics is a longtime political consultant for Republicans; another is a parody account by “Devin Nunes’ Mom” that Twitter has suspended, and the third is a still-active parody account by “Devin Nunes’ Cow.”

I am not a lawyer, but I am fairly confident that Nunes’ complaint gets the law wrong right off the bat when it states at the top of its second page that Twitter is an “information content provider” under Section 230. It is not — it is an “interactive computer service,” the sort of service that the law specifically shields from liability. But in an attempt to color the court’s analysis, the complaint argues that Twitter develops content by censoring some users while also failing to enforce its rules, “shadow-banning conservatives” (like Nunes) and “knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory.”

Nope. Unless Devin Nunes’ Mom and his cow paid to promote their tweets, it’s safe to assume Twitter didn’t turn them magically into cash. And the whole point of Section 230 was to allow companies like Twitter to enforce rules (i.e., censor some users) without being treated as a publisher for the purpose of liability.

Oh and that shadow-banning thing that conservatives rant about? It’s bogus.

What’s striking here is that Nunes has identified the sources of the alleged defamation and could easily sue them directly. But seeking $250 million in damages from three individuals, instead of a big tech company, would seem even more ridiculous. And remember, defamation damages are based on how much a person’s reputation has been harmed. Feel free to insert your joke here about the value of the reputation the congressman has cultivated over the last two years.

Hawley has taken a much more serious approach to regulating the internet, and his concerns about data privacy and market power are well taken. But his proposed solution to alleged anti-conservative bias is poorly thought out. He would require companies like Twitter to meet a government-decreed standard of viewpoint neutrality in crafting and enforcing their terms of service, or else they would no longer be shielded from liability for their users’ posts.

Hawley warmed the cockles of many a conservative’s heart at the Conservative Political Action Conference earlier this month, declaring, “Google and Facebook should not be a law unto themselves They should not be able to discriminate against conservatives. They should not be able to tell us that we have to sit down and shut up.”

But why does Hawley trust the government to do a better job policing viewpoint neutrality than Twitter et al police their own sites? And merely imposing some kind of neutrality standard would only lead sites to clamp down far more severely on politically oriented commentary on their sites, for fear of seeming to favor one side over the other. As Robby Soave pointed out at Reason.com, “it is not at all obvious that an internet without Section 230 would be friendlier to conservative viewpoints, since this would actually give platforms even more cause to police speech.”

I am persuadable that Twitter, Facebook, Google and other major tech companies have designed their algorithms and moderation systems in a way that blocks edgy conservative content more often than edgy liberal content. People are more likely to find something objectionable if they disagree with it, and many of the folks who work at the big tech companies in Silicon Valley lean in the same direction as their state.

But I don’t think Section 230 is the problem. On the contrary, it’s part of the solution because it is more valuable to the companies that want to challenge the tech giants than to the giants themselves, who can absorb the buffeting of lawsuits from the likes of the Devin Nunes of the world. If the GOP really wants to cement the dominance of big tech companies, it should keep working to regulate them.

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