WACKER: The Internet Is Broken, But Regulation Can Fix It

The year is 2022, and freedom on the internet is in decline. Just ask Rachel, who recently opened a small bakery. Rachel cheerfully serves all customers, but when it comes to wedding cakes, she sincerely believes as a Christian that marriage is between a man and a woman.

Rachel’s problems started when she tried to create an app for her bakery. Almost every phone uses Google’s or Apple’s app store, but in 2022, neither company will accept an app for “hateful” businesses. She also tried to set up a website where customers can place orders. Unfortunately, she can’t find a payment processor who will accept payments for “hateful” businesses.

While Rachel’s customers can easily find another bakery, Rachel can’t just go and find another app store or another payment processor. As for the competitors trying to build platforms that Rachel and others can use, they are running into these problems in 2019.

Parler, a Twitter competitor, told Todd Starnes that Apple threatened to remove them from their app store. Other competitors in various markets fail once they lose their payment processor; the role payment processors can play as de facto internet censors has produced a strange new alliance between Breitbart and the Electronic Frontier Foundation (RELATED: Former Google Engineer: How Google Discriminates Against Conservatives)

But thanks to section 230 of the Communications Decency Act (CDA 230), these tech companies have the law on their side. The law grants tech companies the power to censor content as they see fit. Any decisions they make are protected by a special legal immunity.

Back when Congress originally created CDA 230, it published several findings. According to one finding, the internet offers a “a forum for a true diversity of political discourse.” According to another finding, the internet has flourished “with a minimum of government regulation.”

That being said, any tech company will have to do some amount of content moderation. Unfortunately, the law took the following approach: trust, but don’t verify. To minimize regulation, Congress granted tech companies the power to moderate content as they see fit. As for promoting political diversity, Congress entrusted that task to the tech companies as well, but CDA 230 does nothing to verify that they actually achieve that goal.

In the early days of the internet, these two goals⁠ — promoting political diversity and minimizing regulation⁠ — were largely compatible, and this hands-off approach worked for both the government and the tech companies. Today, though, these two goals conflict with each other.

Thus, we face a choice, not just about which goal is more important, but about what sort of society we want to live in. Do we protect citizens from the big tech companies that are encroaching upon their liberties? Or do we protect the “liberty” of a few big tech companies to use their unconstrained power as they see fit?

One of the most famous judicial philosophers of the 20th century, Judge Learned Hand, once wrote that “the spirit of liberty is the spirit which is not too sure that it is right.” In a world where we all are fallible and nobody has all the answers, this spirit of liberty requires political diversity.

The liberty that big tech companies want, though, is a different kind of liberty. To them, any checks or balances on their unconstrained power is treated as a fundamental threat to freedom. CDA 230 certainly doesn’t put any constraints on their power.

Throughout history, though, unconstrained power has consistently threatened liberty. As Sen. Ben Sasse so wisely noted in his book “Them,” the founding fathers were not just experts on government. The system they built “rests on an even greater core conviction: human beings are fundamentally, fallen, selfish, and inclined to let our passions run roughshod over our reason.”

Whether it’s big government or big tech, putting too much power in the hands of fallible humans is a bad idea. The big tech companies may not wield the same amount of power as the government, but they also have far fewer checks and balances on their power.

Sen. Josh Hawley has proposed a bill that would introduce checks and balances. It would remove CDA 230’s legal immunity for big tech companies unless they can prove that their algorithms and content-removal practices are politically neutral. We can debate whether this option or some other option is the best solution, but one option should be off the table: there can be no going back to the way things were before.

There are many questions about what a new system would look like. What is clear, however, is that the system we have now is working as well as the Articles of Confederation.