Why can't morbidly rich tech CEOs be sued or arrested?

Yesterday, families whose children died as a result of interactions with social media companies confronted the industry’s top CEOs. The most dramatic moments were when Senator Lindsay Graham told billionaire Mark Zuckerberg that he had blood on his hands, and when Senator Josh Hawley demanded Zuck apologize to the grieving parents in the room — which he did (sorta).

But behind all that drama, which the TV networks loved, was a huge issue that the networks largely ignored because they benefit from it, too. It has to do with something called Section 230.

The Republican case against regulation of business has always boiled down to arguing that when people are harmed by a company’s behavior they can sue for big bucks. If a car company knowingly markets a defective car, they can be sued by people who sustained injury. If your hospital kills a family member because they didn’t sterilize things properly, they can be sued. If your local restaurants makes you violently ill from food poisoning, you can sue them.

But the five fabulously wealthy CEOs who were grilled by members of the Senate Judiciary Committee yesterday occupy a unique space in American law: they can’t be sued, can’t be arrested, and can’t be held accountable for almost anything happening on their platforms, even if they knew all about it and failed or refused to stop it. Nor can their companies, or any of their employees or shareholders.

This is because of a bizarre provision — Section 230 — of the Telecommunications Act that Congress passed and President Clinton signed in 1996. It was supposed to help jump-start the internet, but what it really did was make Mark Zuckerberg into the richest millennial in America (he owns about 2 percent of all wealth held by American millennials) and led to a nationwide mental health crisis.

The language is explicit: while a newspaper, radio station, or TV station can be held responsible for what they publish and its consequences, Facebook can’t be. Section 230 says it clearly:

“[N]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Not only has Section 230 turned the web into a stalking ground for sexual predators (the main focus of yesterday’s hearings); it’s also given Russian President Putin cheap and easy access to individual Americans, an access he’s been using for years to tear our country apart.

For example, on a warm Sunday night leading up to the 2020 election, about 200 locals showed up in the small Oregon town of Klamath Falls armed with guns, baseball bats, and whatever other weapons they could find around the house to fight off the busloads of “Black Antifa marauders” who they believed Jewish billionaire George Soros had paid to put on a bus in Portland and was sending their way to “replace” them.

Of course, George Soros had done no such thing and there were no busloads of Black people. But the warnings were all over the Klamath Falls Facebook group, and, it turns out, similar Facebook groups for small towns all over America.

Literally from coast to coast, that weekend white residents of small towns showed up in their downtown areas with guns, rifles, hammers, and axes prepared to do battle with busloads of Black people being sent into their small white towns by George Soros.

Nobody’s sure whether these messages, which activated frightened white people across the nation, just came from white supremacist groups or were from Putin’s Russian troll farms (social media companies aren’t saying what they know) trying to tear America apart to help Trump get re-elected.

But they worked.

In the tiny town of Forks, Washington, frightened white people brought out chainsaws and cut down trees to block the road leading to their town to stop the busses of Black people they thought were on their way.

In South Bend, Indiana police were overwhelmed by 911 calls from frightened white people wanting to know when the “Antifa buses” were arriving.

And in rural Luzern County, Pennsylvania, the local neighborhood social media group warned people that busloads of Black people were “organizing to riot and loot.”

Similar stories played out that week across the nation, from Danville, California to Jacksonville, Florida, as documented by NBC News.

Of course, it was all fiction. But this nationwide campaign in hundreds of social media groups turned thousands of angry and well-armed white Americans out into the streets with extraordinarily similar stories and in a precise timeline all across the country.

According to the Mueller Report and the FBI, Putin’s troll farms have been targeting Americans via social media for years: they indicted 34 individuals and 3 Russian businesses for their work spreading lies and disinformation to get Trump elected in 2016. White supremacist groups in America regularly get boosts from Putin’s troll farms, who have the power to make messages go viral.

But were the social media platforms that hosted those lies ever punished?

Did they have to do anything to repair the damage Putin did to America via their companies?

Is there even a regulatory agency that has the ability to control them, the way the FCC can a radio or TV station, the NHTSA does car manufacturers, or the way the FDA oversees the pharmaceutical industry?

No on all counts. All because of Section 230.

And the social media companies know this: it’s intrinsic to their profit-making strategies, in fact.

An internal Facebook document from October, 2019 leaked to the MIT Technology Review and written about by Karen Hao, found that around 15,000 different foreign-troll-farm-run Facebook pages/groups/sites reach 140 million Americans every month. The foreign-run pages included:

— “[T]he largest Christian American page on Facebook, 20 times larger than the next largest—reaching 75 million US users monthly…
— “[T]he largest African-American page on Facebook, three times larger than the next largest — reaching 30 million US users monthly…
— “[T]he second-largest Native American page on Facebook, reaching 400,000 users monthly…
— “[T]he fifth-largest women’s page on Facebook, reaching 60 million US users monthly…”

When that 2019 report was written, of the top 20 “American Christian” sites on Facebook, 19 were foreign-troll-farm-run. Ten of the top 15 African American sites on Facebook, including the one that sits at #1, were similarly run by foreign, mostly Russian, troll farms.

Is it any wonder, given this, that evangelicals have bonded to Trump and the Black vote has been inching in his direction?

The Facebook internal memo, written by former senior-level data analyst Jeff Allen, didn’t dive into possible political motivations, although the Mueller Report made clear that similar non-US activity on Facebook and other social media exploded prior to the 2016 election, reaching tens of millions of Americans and helping make Donald Trump president.

That America has allowed this situation to exist and fester for almost 30 years is beyond bizarre.

Consider this thought experiment that hopefully makes the entire situation clear:

Friday night your neighbor puts a sign out in front of his house saying, “Big Party Tonight! No Rules! Everybody Welcome!”
By 2 a.m. the whole house has filled up with criminals doing their thing: some guy is selling porn in the kitchen, one bedroom has turned into a shooting gallery filled with addicts, while a dealer in stolen guns has taken up residence in the living room. There’s a knife fight going on in the backyard.

When the police show up they’ll not only bust the reprobates; they’ll also haul off your neighbor. After all, it was his home and he knew that criminal activity was going on inside it.

That’s not particularly controversial; it’s been an aspect of the law since at least 1275 with the introduction of the Castle Doctrine into British common law, and probably for millennia before.

You have control of your “castle,” but you also have responsibility for what happens in it.

The same is true of businesses. If the manager of your local Home Depot, for example, decided to open the large spaces inside the store to after-hours criminal activity s/he would go to jail along with the criminals themselves.

But here’s where it gets weird. What if, instead of a physical location, the “home” or “party venue” or “business” is online and called Facebook or X or TikTok?

Back in 1996, a handful of geniuses in Congress thought, “Hey, let’s do away with the entire concept of the homeowner or business owner having responsibility for what happens in their place.”

Seriously. Selling drugs, trading in guns and ammunition, human trafficking, planning terrorist attacks. All good. No problem.

No matter what happens on a social media platform, the owner — the person who opened the place to the world and put out a “Big Party” sign — bears no responsibility whatsoever for what goes on inside. None. Untouchable.

The police can bust the crooks, but they can’t arrest the guy who owns the online “castle” and literally makes billions from the criminal activity that happens on it: no court has any authority to try him, and he’ll never, ever see even one day inside a jail cell no matter what happened in his place.

Sounds crazy, right?

But, continuing that metaphor about your home or place of business being your castle, that’s pretty much exactly what Congress did with Section 230 of the Telecommunications Act of 1996.

It wasn’t always this way.

Back when the internet started, but before hypertext markup language (HTML) was invented, there were really only two big “castles” on the internet: CompuServe and AOL. My old friend and business partner Nigel Peacock and I ran forums on CompuServe starting around 1980, right up until 1996.

We ran the IBM PC Forum, the Macintosh Forum, and about two dozen other “places” where people interested in ADHD, desktop publishing, UFOs, the Kennedy assassination, international trade, and a bunch of other topics were discussed.

CompuServe paid us well (as much as $20,000/month), because we had to make sure nothing criminal happened in any of the forums we ran. And we split that revenue with the 20 or so people who worked with us as Sysops.

We kept the online places open and safe. After all, it was CompuServe’s “castle” and they were paying us big bucks to make sure nothing illegal happened inside it.

Until just after 1996, when they decided they didn’t any longer have to pay to keep the “buildings” safe and crime-free. Shortly after Section 230 went into law, CompuServe stopped paying us for the work we did and most of their moderators simply drifted away, some replaced by community-minded volunteers like those who today run “groups” on Facebook.

The impact of Section 230 is obvious today.

Facebook is now so powerful and its impact so far-flung that it literally helped cause a mass slaughter, a race-based genocide, in Myanmar/Burma.

Zuckerberg, our country’s richest millennial who owns 2 percent of allmillennial wealth in America, had a secret dinner with Donald Trump during the Trump presidency, and held multiple meetings with rightwing politicians, reporters, op-ed writers, and influencers, according to Politico. I can find no record of him having similar private dinners with either Obama or Biden, nor with any groups of progressive journalists, writers, politicians, or influencers.

Numerous sources identify Facebook as one of the major hubs of organizing for rightwing events including January 6th, the rise of Qanon, and the contemporary militia and white supremacist Nazi movements.

The criminals can go to jail, but the people who own the Internet “castles” where the transactions take place are almost entirely immune.

In 1997, in the case Zeran v. America Online, the Fourth Circuit Court of Appeals ruled that Section 230 is written so tightly that even when an online service is knowingly allowing lawbreaking, they can’t be held accountable.

Since then, a few exceptions have been “found” by courts, including copyright violations, human trafficking, and instances when the owner of the online “castle” encouraged people there to conduct illegal activity.

But beyond those few extreme gotchas, it’s still the wild, wild west out there on the internet.

Section 230 lives on. I wrote a book that covers it, The Hidden History of Big Brother: How the Death of Privacy and the Rise of Surveillance Threaten Us and Our Democracy.

So did Josh Hawley, the Republican Senator from Missouri who hopes to be the next Trumpy president, and his book’s take is pretty much the same as mine: Section 230 is extremely problematic, at the very least.

Fixing or simply voiding Section 230 is a place where internet-savvy liberals like Amy Klobuchar and far-right conservatives like Hawley and Graham can find considerable common ground.

It won’t be super-easy and is going to require some serious discussion and debate about the limits of both surveillance and liability, as the Electronic Freedom Foundation points out in a recent piece about the newest attempt to “protect children” on the internet.

A new study published just this week found over 33 million examples of content harmful to children scattered across social media just last month. This content is apparently not anything they want to regulate or completely do away with, either because they don’t want to pay to deal with it or because it generates so much revenue for them (or both).

And the social media companies, raking in billions in profits, have so far stymied all efforts to do away with Section 230 or regulate their behavior by taking advantage of the Supreme Court’s legalization of political bribery: Silicon Valley is one of the larger players in the lobbying and campaign contributions game.

Nonetheless, something must be done about these cyberspace “castles,” especially given the demonstrable harm Section 230 is allowing to happen to both our kids and our democracy.

If Zuckerberg and his peers have to start hiring people to do what Nigel and I did for CompuServe years ago, it may reduce their income from tens of billions to mere billions. But society will be the better for it, our political landscape will stabilize, and fewer children will die.

I’d argue that’s a tradeoff that’s well worth making. If you agree, call your members of Congress at 202-224-3121 and let them know you believe it’s time to consign Section 230 to the trash heap of history and begin to hold accountable and regulate these toxic behemoths.