Facebook’s Pitch to Congress: Section 230 for Me, But not for Thee

As Mark Zuckerberg tries to sell Congress on Facebook’s preferred method of amending the federal law that serves as a key pillar of the internet, lawmakers must see it for what it really is: a self-serving and cynical effort to cement the company’s dominance.

In prepared testimony submitted to the U.S. House of Representatives Energy and Commerce Committee before a Thursday hearing, Zuckerberg proposes amending 47 U.S.C. § 230 (“Section 230”), the federal law that generally protects online services and users from liability for hosting user-generated content that others believe is unlawful.

The vague and ill-defined proposal calls for lawmakers to condition Section 230’s legal protections on whether services can show “that they have systems in place for identifying unlawful content and removing it.” According to Zuckerberg, this revised law would not create liability if a particular piece of unlawful content fell through the cracks. Instead, the law would impose a duty of care on platforms to have adequate “systems in place” with respect to how they review, moderate, and remove user-generated content.

Zuckerberg’s proposal calls for the creation of a “third party,” whatever that means, which would establish the best practices for identifying and removing user-generated content. He suggests that this entity could create different standards for smaller platforms. The proposal also asks Congress to require that online services be more transparent about their content moderation policies and more accountable to their users.

An Anti-Competitive Wedge

The proposal is an explicit plea to create a legal regime that only Facebook, and perhaps a few other dominant online services, could meet. Zuckerberg is asking Congress to change the law to ensure that Facebook never faces significant competition, and that its billions of users remain locked into its service for the foreseeable future.

It’s galling that at the same time Zuckerberg praises Section 230 for creating “the conditions for the Internet to thrive, for platforms to empower billions of people to express themselves online,” he simultaneously calls on Congress to change the law to prevent any innovation or competition that could disrupt Facebook’s market position. Zuckerberg is admitting that after Facebook has benefited from Section 230, he doesn’t want any other competitor to do the same. Rather than take up Facebook’s proposal, Congress should instead advance meaningful competition and antitrust reforms to curtail the platform’s dominance.

Moreover, Zuckerberg’s proposal comes just before a congressional hearing that is ostensibly about the problems Facebook has created. These problems exist precisely because of Facebook’s dominance, anti-competitive behavior, and terrible privacy and content moderation practices. So in response to Facebook’s significant failures, Zuckerberg is telling Congress that Facebook is the solution. Congress should respond: Absolutely not.

A Flawed Proposal

On the merits, Zuckerberg’s proposal — though light on specifics — is problematic for several reasons.

First, the proposal overlooks that the vast majority of online services that host user-generated content do not have the technical, legal, or human resources to create systems that could identify and remove unlawful content. As Mike Masnick at TechDirt recently wrote, the internet is made up of far more diverse and less-resourced services than Facebook. Congress must recognize that the legal rules it sets for online services will apply to all of them. Zuckerberg proposes that the required “adequate systems” be “proportionate to platform size;” but size is only one factor that might correlate to an intermediary’s ability to implement such systems. By punishing growth, a size-scaled system would also discourage the development of nonprofit intermediary models that might compete with and replace those that profit greatly off of their users’ data. What would actually be necessary is an assessment of whether each individual intermediary, based on its numerous characteristics, has provided adequate systems. This is essentially a legal negligence standard – asking the question “Has