The Trump administration heavily underscored the growing importance of BigTech in policymaking and the intersection of technology and politics continues to be an issue of concern under the Biden Administration. At the centre of this overlap of tech governance and First Amendment Rights is Section 230 of the Communications Decency Act (CDA) 1996 as per the United States code of law. The law while allowing online platforms to moderate user-generated content without being labelled as a publisher, absolves them of legal liability. It also allows Twitter to attach a fact-checking label to a false Trump tweet, the origin of the executive order limiting Section 230 in May 2020. The litany of lawsuits brought against BigTech recently and Attorney General William Barr’s recommendations on reform has restarted the debate and its long-term impacts are worth considering.

Section 230 of the Communications Decency Act enacted in 1996 states “No 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." BigTech sees this as an extension of the openness and free expression of the Internet since its inception in America, often dubbed the “26 words that created the internet” which led to the dot-com era. This also allows them to block and remove insidious third-party speech while policing their platforms, an immunity offered to them by United States Congress by using a broad interpretation of the law. This impacts platforms like Google, Twitter, Facebook and YouTube which choose to moderate content using software as approving such huge quantities of data, 1.7 billion active Facebook users and half a billion daily Twitter posts, would require proportional resources and expenses creating delays and compromising user experience. Startups especially benefit from this legal immunity by avoiding legal entanglements.

However, United States Congress has recently found itself in a position of revoking these favours. The assumption that BigTech has lost some favour with the United States Congress would not be a farfetched conclusion considering the series of antitrust lawsuits in recent months, Trump administration’s policies revoking freedoms during election season, and no sign of change in the Biden administration. The issue of data privacy and anti-competitive practices instituting trade barriers has brought to light the extent of power a few tech companies wield and the role Section 230 plays in extending these powers.

These concerns have even been connected to national security by former US President Trump suggesting electoral manipulation by these platform algorithms favouring a certain political stance. Trump made bashing the media and online platforms for censoring his speech a centrepiece of his election campaign. He also pushed for removing these protections from his trade deals, tied the issue to a vote over $2,000 Covid relief stimulus checks, and vetoed the National Defense Authorization Act on defence spending because it did not include a repeal. Surprisingly, current US President Joe Biden, who hasn’t revealed much of a stance on tech issues, has stated that the law “immediately should be revoked” reasoning that BigTech is not doing enough to prevent misinformation despite knowledge of falsehood referencing deep fakes and digital deception. BigTech companies wonder are they guilty of censorship or disregard?

This debate will have long-lasting impacts by redefining definitions of what constitutes a ‘publisher’, a ‘market’ and what will be considered ‘competition’. For example, in wake of recent changes to its privacy policy Facebook, an online social networking website has labelled Apple, a digital manufacturing giant, as its biggest competitor because of the impact of these policies on advertising. The competition for the dominant platform position will impact billions of businesses worldwide, the curbs on freedom of speech will impact billions of users generating content for these platforms. Similar laws exist in Australia and the European Union which must be consulted by the United States Congress.

The future of Section 230 lies in the adage that ‘policy is personnel’. Since the interpretation of Section 230 has been heavily dependent on the personnel the upcoming appointments in the Department of Justice will be especially relevant. United States Congress is still ambivalent about whether it will favour repeal or revision of the law, but it must tread the line between choosing proactive moderation efforts while punishing arbitrary and discriminatory moderation. Any change in law will also have pushback from investors of small and midsize tech stock. The advent of the data-driven economy has meant a global impact on anyone with access to the internet. Technology is transformative, politically, economically, culturally and if everyone has been enjoying using the modern equivalent of a car, United States Congress is now demanding we talk about traffic lights. Big Tech has managed to unify both the Democrats and Republicans to a common cause, but care must be taken that Big Tech doesn’t end up becoming bigger at the expense of small players under sweeping and misinformed reforms.