Reining in the Techno-Oligarchy
Reining in the Techno-Oligarchy
By Orrin G. Hatch | Wednesday, February 10, 2021
In January, we witnessed the transfer of power from one president to the next. But we simultaneously witnessed proof of another transfer of power—from elected officials in D.C. to tech companies in Silicon Valley.
Consider the events of the last month. Social media sites banned the sitting president of the United States from their platforms. A purge of conservative voices on Twitter ensued. Amazon Web Services expunged Parler, a conservative social media site, from the internet. Just days later, YouTube blocked public access to a Senate hearing on COVID-19.
These events confirmed what many of us have long known: true political power no longer resides in Washington, but in Silicon Valley. Big Tech now effectively decides who has the right to speak, who has the right to assemble online and who has the ability to build a business in the digital age. For many Americans, Twitter's terms of service agreement now has more power over what they can and cannot say in the public square than the First Amendment does.
As David Sacks rightly observed, social media companies have privatized our free speech rights. Through a combination of surveillance, speech policing and economic censorship, private companies are undermining the virtues of a free and open internet and relegating many Americans to second-class status. A dark future awaits if government fails to rein in these monopolies.
The pattern of "canceling" individuals for social media posts is well established. This can result in deplatforming, termination of employment or—if you're baseball legend Curt Schilling—even losing your health insurance. We're used to seeing cancel culture on a micro-scale: a newspaper editor being fired here, a university professor being suspended there. But now, thanks to an assist from Big Tech, we're seeing cancel culture on a much broader level. Take the mass cancelation of Parler's more than 10 million users, or growing calls to ban Fox News, Newsmax and other right-leaning channels altogether. If successful, these efforts will shrink the window of acceptable viewpoints in American society until conservatives find themselves on the outside.
The irony is that American taxpayers—conservative and progressive alike—are subsidizing this effort.
Take Amazon, for example. In 2013, it signed a 10-year deal worth $600 million to provide cloud computing services for federal agencies. Even now, the company is making a legal push to secure a $10 billion contract with the Pentagon. And then there is the $3.7 billion in subsidies Amazon has pocketed from state and local governments over the years.
Amazon is what it is today—one of the largest tech firms in the world, with an annual revenue exceeding $280 billion—thanks in no small part to the American taxpayer. This makes Amazon's decision to muzzle millions of American voices by removing Parler from the web last month all the more problematic. A company that has received billions of dollars from U.S. taxpayers showed no hesitation in cutting off access to public speech for millions of those same taxpayers. Certainly, voices that call for violence or overturning democratic election results have no place in public discourse. But such voices were only a minuscule minority of Parler's millions of users. Even Americans who don't subscribe to Parler or who hold progressive views should be concerned about the dangerous precedent being set.
With its near-monopoly power, Amazon isn't afraid to bite the hand that feeds it. Having led the antitrust investigation into Microsoft as chairman of the Senate Judiciary Committee in the late '90s, I understand the problems that arise when a single company comes to dominate the market. But even more concerning is what happens when a single company, or group of companies, comes to dominate both the market and the public square. That's what we are seeing today. The power of Big Tech now rivals the power of the federal government itself. Antitrust law alone is not enough to rein in these companies. We need something more: a comprehensive digital bill of rights far more expansive in scope than anything that has been previously suggested.
Prior efforts to create a digital (or internet) bill of rights have focused on protecting personal data and privacy. Although such safeguards are essential, they are not enough. Just like the Constitution's Bill of Rights, a truly comprehensive digital bill of rights must protect not only privacy, but also the right to speak and to assemble. Social media platforms are the 21st-century equivalent of the public square, and therein lies the challenge. Private actors are deciding which views are permissible in the public discourse through their terms of service—and Section 230 lets them do so in any way they want. The solution, however, is not to rewrite Section 230 in a way that would drive these companies out of business. Rather, it's to eliminate their power to engage in arbitrary censorship. How can this be achieved? By requiring these companies to tie their content moderation policies directly to the First Amendment.
History has proven the First Amendment to be the most effective standard for setting the boundaries of protected speech. The First Amendment fosters robust discussion and a diversity of viewpoints while permitting restrictions on a handful of limited, carefully defined categories of harmful speech, such as fraud, defamation, child pornography and incitement to violence. What it doesn't permit are prohibitions on conservative viewpoints, negative news stories about President Biden's family or opinions that tech oligarchs might not like. And that's exactly why it should be the standard for social media companies providing a forum for public discourse and the companies owning the servers that host such forums.
If these companies want to base their business models on providing digital access to the public square, then they should have to abide by the well-established standards regulating free speech in the public square. Insofar as they conform to First Amendment standards in their terms of service, these companies should continue to enjoy immunity from civil liability under a revised section 230. But if they want to go beyond the First Amendment and prohibit forms of speech protected by the First Amendment, they should be liable just like any publisher who engages in content moderation (which is really content discrimination).
To guard against economic censorship, policymakers might also consider classifying firms like Google or Amazon as "public accommodations." These sorts of enterprises, which include hotels and restaurants, are required by law to provide their services to people of all backgrounds, with limited exceptions. Or the Big Tech companies could be treated as "common carriers" akin to phone companies or railroads, which are required to provide their services to all customers willing to pay a fee. It would be unthinkable today to turn off someone's water or electricity, or deny someone passage on a boat or airplane, because of that person's political beliefs. It should be just as unthinkable to turn off that person's access to basic web services—but sadly, our laws don't yet provide this kind of protection. Congress must put in place such protections now to prevent the establishment of a new digital hierarchy that places conservative viewpoints at the bottom of the social pyramid.
Big Tech has privatized many of our most fundamental freedoms, including freedom of speech and freedom of assembly. But by following this simple blueprint, we can safeguard those freedoms now and in the future and usher in a new era of prosperity and innovation.
Orrin G. Hatch is chairman emeritus of the Orrin G. Hatch Foundation and the former chairman of the Senate Judiciary Committee. A Utah Republican, he served in the U.S. Senate, 1977-2019.
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