Section 230 has not kept pace with the times and now presides over a very different internet from the one it was designed to govern.
Americans are angry with Big Tech. Silicon Valley has created the conveniences that define modern life—ever-present connectivity, around-the-clock news and social-media feeds, data-powered smartphone apps, and the eternal glow of device screens—but, as Americans are once again learning, nothing in life is free. The price we pay is our personal information and privacy, which we offer up to the nation’s biggest tech players—Google, Amazon, Facebook, and Twitter—who harvest our data and employ it to dominate the nation’s digital economy, track our movements, guide purchasing decisions, regulate the flow of information, shape political discourse, and define the contours of civilized speech. Satisfied neither to tolerate the Silicon Valley empire nor to forgo its conveniences, Americans have called for legal action. Congress is now adrift in a sea of its own reform proposals, having introduced more than two dozen bills in the last year alone to target issues ranging from cyberbullying, privacy, censorship and free expression, misinformation, online gun sales, and behavioral advertising to deceptive trade practices and tort liability.
In his new book, The Tyranny of Big Tech, Senator Josh Hawley adds to the pile his own set of proposals, but, more importantly, offers a more fundamental critique: The greatest danger of Big Tech is not in any of the specific technological ills that Big Tech may bring upon society—compromised privacy, election interference, or medical misinformation, for example—but, rather, the threat that by its very size Big Tech will stifle competition, limit innovation, bring the government to heel, and usurp the political power of the middle and working classes.
None of this even need be intentional. In many ways, Senator Hawley explains, the American tech industry has become a victim of its own success. Facebook, Google, and others have long stood as symbols to the world of American drive and ingenuity. But by giving us exactly what we (think we) want—unbridled access to addictive media content, targeted ads with one-click purchases and next-day delivery, and insulated social-media communities that feed us precisely the news we want to hear—and by making it all available for “free,” in exchange for our personal data, Big Tech has found itself with immense power over Americans’ data, online social lives, political discourse, and channels of commerce.
To diagnose the nation’s ailments, Senator Hawley first steps back to assess the modern tech industry in its historical context. He sees Big Tech’s rise to power as just the most recent step in a generations-long struggle between everyday Americans and the modern corporate structure. That corporate structure and the Big Tech boom it spawned, Hawley argues, have divided the country into a professional class and a working class, centralized power in the hands of a small number of powerful companies, and muffled the political voices of everyday Americans. In a society run by corporations and administered by governmental technocrats, he argues, what place is there for the ordinary citizen? She has no real stake in government and feels powerless to affect meaningful change.
Senator Hawley’s key insight is that many of the seemingly disparate problems introduced by new technologies over the last two decades can be tied to the tech industry’s business models, which often require companies to push out competitors and capture concentrated control over markets so that they can acquire and monetize consumer data. They build attractive apps and platforms, provide them to the public for free to attract a sizable user base, collect information about users’ identities and usage of the platform, and then mine that data for ad-targeting information to recoup their development costs and turn a profit. Pulling it off successfully requires an enormous and steady stream of fresh data: Accurate customer targeting requires voluminous data; small user bases will not work.
And those users must actively engage with the platform. Advertisers are relatively uninterested in what a user considered purchasing last month because by now she might already have made the purchase. To feed their algorithms’ insatiable appetite for fresh data, companies have incorporated alert badges, notification bells, autoplay, infinite scrolling, and other psychologically addictive features. And to maximize user engagement (and extractable data), social-media platforms rely on algorithms that leverage and perpetuate outrage culture by identifying incendiary content for delivery to the very insulated social groups that it is most likely to inflame. These tactics, Senator Hawley notes, have had damaging consequences for society, which has suffered increase incidences of depression and suicide in youth, technological addiction, shortened attention spans, and loss of meaningful human connections.
As perceptive as is his reflection on Big Tech and social media’s ills, Senator Hawley’s proposed remedies are less careful, and their scope is breathtaking. His solution? Break it all up: Revive robust, Rooseveltian antitrust doctrine by empowering regulators to look beyond consumer welfare to directly protect democratic self-governance; grant the Department of Justice authority to designate “dominant” firms for extra scrutiny and bar them from merging or acquiring other tech companies; regulate corporate data collection and app design by denying firms Section 230 immunity if they engage in behavioral advertising; enact stringent federal privacy laws to guarantee control over personal data; and wrestle back individual choice and power over the technology surrounding us by enabling users to sue platforms for acts of censorship or other alleged breaches of good faith.
Senator Hawley’s view of Big Tech as a modern rebirth of old-time robber barons places him in unusual company. His acerbic style and propensity for grandiosity have lost him friends in Washington. But Senator Hawley, the legal thinker, has an important contribution to offer. His own concern is to promote a populist strand of individualistic conservatism, but in so doing he finds much common ground with the left-leaning work of post-Borkian antitrust scholars such as Lina Khan, Elizabeth Warren, and Barry Lynn, who worry that even without increasing consumer prices (many online products are free, after all), Big Tech monopolies may harm consumers by depressing wages and stifling innovation. And in questioning social media platforms’ unreviewable power to promote or censor user content, Hawley joins scholars on both the right and left who have urged legal reform to Section 230 internet immunity doctrine to hold online platforms accountable when they disfavor marginalized voices or disseminate harmful or offensive material. The world may never see Senator Hawley as he sees himself—as a modern-day, trust-busting Teddy Roosevelt leading the charge against corporate elites—but his work tells a compelling story and gathers an unlikely set of allies in the process.
Its rhetorical power is precisely what makes Senator Hawley’s book so pernicious. His concerns will resonate with many Americans, who naturally feel unsettled by the changes Big Tech has wrought. And the crosscutting populism of his solution could capture public support and unite lawmakers to press for dramatic internet-immunity reform or Big Tech breakups. A tech crisis is looming, and we are approaching an inflection point. Social media platforms have created a new public square, where not all voices are welcome. And those who use the platforms do so in exchange for troves of personal data that may be fueling anticompetitive practices, while also exposing themselves to addictive technologies that can be psychologically harmful, especially to teens and children.
The problem is this: Hawley prescribes strong, untested medicine for a little-understood disease that has not yet run its course. Sending in the internet-reforming, antitrust-wielding cavalry is likely to do far more harm than good. The reforms Hawley proposes are untested and dangerous. Incautious reforms to Section 230 risk undermining the entire tech industry by inviting a flood of lawsuits. Other changes of the sort that Hawley proposes—cutting off online entities’ revenue streams by limiting data-driven advertising practices and creating rights of action for individuals to litigate content-moderation decisions—are certain to do so. The increased compliance costs, regulatory uncertainty, and litigation expenses that these changes would bring to the tech industry, combined with loss of a major revenue source, could even threaten the United States’ position as a worldwide innovation leader.
To Senator Hawley, though, that is the point. Big Tech’s size is fundamentally incompatible with American self-governance; it should be cut down, regardless of the effects. We must be more cautious. Harsh, uncompromising governmental action sometimes is the way. But there is a time for war and a time for peace. Competition and innovation often come in surprising ways. Where once there was Windows, now there are Chrome OS, Android, and Mac OS. Where once there were taxicab medallions, now there are Uber and Lyft, Byrd and Lime. Even in Big Tech’s shadow, the seeds of competition are rising. To challenge data-hungry Facebook and WhatsApp, there are privacy-minded Signal and Telegram. For maximal speech and minimal moderation, Twitter now faces off with Parler. To review and theorize content-moderation decisions, we now have the Facebook Supreme Court. These and other reforms could fail. Big Tech might even try to crush them. Most charitably read, Senator Hawley’s book sends off a warning to Big Tech against the second: Allow the seeds of competition to grow, or tread them at your peril. Before we follow Hawley to battle, let us first see how they flourish.