In Part One I explained the basics of tort law, and how an industry (such as tobacco) was held accountable through the process of civil law suits. I ended with a brief discussion of ‘Section 230′ of the ‘Communications Decency Act of 1996′ – and how even raising the possibility of repealing that section makes ‘big tech’ CEO’s nervous.
Here’s an example from the Senate hearing last week.
That interaction with Senator Graham illustrates the adage about politicians that “Whatever they are talking about, they are really talking about money!”
The problem they (the Senators) are “talking about” with all the “bills” they are passing can be solved without those bills – by simply repealing ‘Section 230′. (Though that may not help those unfortunate people in the audience – but then nor would any of the bills. It’s complicated. )
What would happen if Section 230 is repealed? ‘Big tech’ has the ultimate deep pockets. Tort lawyers would descend on them like a swarm of locusts on a Nebraska cornfield..
Or, more aptly, being personal injury lawyers it would be like a shark feeding frenzy.
Ahh … but don’t underestimate the ability of big money to defend itself. In Part One I referred to some clever lawyers who figured out how to get around the assumption of risk by people who smoked cigarettes despite the warning labels.
Yet people still smoke cigarettes, and are suffering the ill effects, but you don’t see the ‘tobacco lawsuits’ like those original ones anymore. So why isn’t ‘big tobacco’ still in the middle of the feeding frenzy? Because they figured a way out to keep the sharks at bay. With the help of ‘big tobacco’ the law got changed.
In the case of ‘big tech’, they saw what happened to the tobacco companies, so they got the Clinton administration to push Section 230 through Congress as an amendment to the ‘Communications Act of 1934′. Under the guise of facilitating “innovation” in communications, ‘big tech’ got the government to put legal protection in place before anyone had a clue what social media would become – and they were off to the races, free of any legal risk for whatever harm they might cause.
So, you ask, if Section 230 is repealed, couldn’t ‘big tech’ just get the law changed like ‘big tobacco’ did. Yep… they sure can… and the easiest way to do so would be if an agency was created to regulate them. As explained in that link above to the National Library of Medicine, ‘big tobacco’ influenced the American Law Institute to re-write tort law.
A federal digital platform regulatory agency could effectively do the same thing.
Here’s how.
The forte’ of bureaucracies is creating regulations. The “regulatory compliance defense” is a legal doctrine holding “[I]f experts in the manufacturer’s field determine that certain steps and measures are required to make a product safe, and those measures are followed by a manufacturer, they should not be second-guessed by nonexpert juries.”
If ‘big tech’ complies with regulations promulgated by a digital platform regulatory agency, their exposure to lawsuits is reduced – considerably. And who do you think are going to be the “experts” who write those regs for the agency?
Big government is the very last method of effectively regulating big business for one simple reason – “regulatory capture”. With their financial resources, and technical expertise, the ‘big tech’ companies would quickly infiltrate, and gain control of, digital platform regulators. The classic example was how railroads (the “big tech” of the 19th century) were able to exert control over the agencies formed to regulate them. “Large railroad companies themselves advocated for regulation by the Interstate Commerce Commission (ICC) under the Interstate Commerce Act of 1887.”
“Capture” results because “regulators themselves come from the pool of industry experts and employees, in part due to the complex and specialized knowledge needed to regulate an industry, and may also then return to work in the industry after their government service.” Just look at the “revolving door” between the financial industry and federal finance regulatory agencies.
Financial regulators “have an incentive to implement sophisticated regulations, in the hopes of buffing their resumes to move through the revolving door between regulatory agencies and Wall Street. Insider knowledge of complex rules could make an experienced regulator a more appealing candidate to a bank.”
If ‘big tech’ sees the handwriting on the wall that Section 230 will be repealed, don’t be surprised if they pivot to welcome a federal digital platform regulatory agency — which they could capture. Then they can enact regs to facilitate their reliance on the regulatory compliance defense to limit their exposure to lawsuits — like the railroads, and other industries have done.
So be careful what you ask for with a digital platform regulatory agency. Ask yourself when any government bureaucracy has ever fixed anything.
Simply repealing ‘Section 230′ will unleash the tort lawyer Krakon on ‘big tech’. To simply survive that feeding frenzy they will clean up their act (at least until they figure out a workaround). And taxpayers won’t have the cost of yet another bureaucracy which won’t solve the problem.
Pack of wolves… sharks with blood in the water.
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.