In response to the op-ed by Quentin Young, reprinted in the Daily Post on February 2, I have a humble suggestion.
I concur with what Mr Young writes about the dangers (evils) of social media. He illustrates why I have never, and will never, participate in any social media platforms — unless you consider watching YouTube videos (but not posting comments) “participating.”
There is no question the internet has had a positive impact on humanity, at least as significant as the movable-type printing press. As a research tool the internet is unprecedented – even if some believe it makes them more knowledgeable than they really are. (As the sign in my doctor’s office announces, “Google is not a substitute for years of training and experience!”)
Though I don’t participate in social media, neither am I a Luddite advocating abolishing it — if that were even possible. Many who use it to keep in contact with family and friends. But far too many rely on it as a substitute for learning and thinking.
However, there is one part of Young’s column with which I strongly disagree. He wrote “a bipartisan group of senators that has called for the creation of a whole new federal agency, in the manner of the FDA or FAA, to regulate digital platforms.” A federal agency to regulate digital platforms would be like throwing B’rer Rabbit into the briar patch.
‘Whatever you do,’ cried Brer Rabbit, ‘Don’t throw me into the briar patch’…
…or how to get recalcitrant idiots to do what you want.
(“Old tales of psychological manipulation translated into modern English”)
To understand why creation of a new federal agency is the wrong approach, first you must understand the basic law of torts. Class is now in session….
For purposes of this discussion, we will use the following definitions from Black’s Law Dictionary:
Tort – “A civil wrong from which a remedy may be obtained in the form of damages; a breach of a duty that the law imposes on everyone.”
Remedy – “The means of redressing a wrong”
Damages – “Money ordered to be paid to a person as compensation for loss or injury”
Breach of duty – “The violation of a legal obligation; the failure to act as the law obligates one to act.”
Tortfeasor – “One who commits a tort; a wrongdoer”
“Deep pocket” – “A person or entity with substantial wealth and resources against which a judgment may be taken” (ie: damages)
So, why does that legalese mean creating a new federal agency to regulate digital platforms is a bad idea. To understand that, you first need to watch what happened last week in the United States Senate. (Search ‘big tech CEO senate hearings’ on youtube.)
The CEOs of ‘big tech’ got hauled in front of gaggle of Senators — ostensibly so the CEOs could provide input into a variety of legislation being proposed to regulate the content of social media platforms. It was political theater at its finest — ironically preserved for perpetuity on YouTube.
I say “ostensibly” because the true purpose was for the Senators to one-up each other by publicly calling out the CEOs. The CEOs (when given the chance to actually answer the Senators’ questions) regurgitated their coached, rehearsed sound-byte answers.
To make the spectacle more dramatic, in the audience sitting behind the CEOs were the surviving family members of people who have died in some manner as a result of what the deceased were exposed to on social media. One Senator managed to manipulate Meta CEO Mark Zuckerberg into publicly apologizing to the families in the audience.
Those family members were justifiably angry. The stories of how their relatives were harmed by social media are tragic. But creating a new bureaucracy won’t compensate those families for their loss (if that is even possible) — and it certainly won’t fix the problem.
Nor will Zuckerberg’s public contrition (though I’m sure the Senator will tout it to his constituents come re-election time).
So what will fix it? There is a easy solution that doesn’t burden us taxpayers with a new federal bureaucracy. Simply amend an existing statute – problem solved. I’ll get to that statute shortly.
You want to get the attention of a business? Hit ‘em where it hurts: their bottom line. The tobacco industry is the prime example. For decades they continued to sell their drug (nicotine) more or less with impunity. Sure they had to display warning labels on their product — which they were happy to do.
Why “happy” you ask? Because with those labels, they were warning anyone who used the product that it was potentially dangerous. By ignoring the warning, and using the product, you were “assuming the risk” of being harmed by the product.
Assumption of risk – The principle that one who has taken on oneself the risk of injury can not subsequently maintain an action against the party causing the injury.
Gosh darn… you’d almost think that when government regulators made ‘big tobacco’ slap those warning labels on packs of cigarettes the companies were saying please don’t throw us in that briar patch. But then some enterprising tort lawyers figured out how to sue their way into the deep pockets of ‘big tobacco’ despite those warning labels.
After the first successful tobacco injury lawsuit, the flood gates were open. Tort lawyers were beating the bushes for smokers suffering from diseases associated with nicotine (and family members of deceased smokers) who wanted to reach into ‘big tobacco’s’ deep pockets. Which brings us back to ‘big tech’…
If you watch the questioning of the ‘big tech’ CEOs by the Senators last week, you will notice something interesting. Whenever asked about ‘supporting’ any of the proposed new laws, the CEO’s give these evasive “we’ll be happy to work with you” answers.
But whenever the topic on “Section 230″ comes up, it’s like whipping out a hunk of kryptonite in front of Superman. So what about that Section has those big-bad CEOs so rattled?
“Section 230″ is a provision of the “Communications Decency Act of 1996″ — an insidious piece of legislation crafted by the Clinton administration in conjunction with the then-emerging social media corporations. It protects ‘big tech’ from being sued for what shows up on their platforms — the kind of stuff that killed the family members of those in the audience of the Senate hearing last week.
Here is the relevant provision of Section 230:
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
You can’t sue ‘big tech’ for whatever some pervert, groomer, sex or drug trafficker, terrorist or plain-old nutjob posts on a platform – even if that post caused someone to commit suicide.
Under that Section, the person whose post(s) caused the harm is the tortfeasor from whom damages must be sought. The host corporation does not breach any legal duty by merely providing the social media platform – and thus can’t be sued.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.