Big Tech Section 230 legal immunity fight to continue after Trump

Social media platforms and other Big Tech companies won’t be out of the government’s crosshairs in the post-Trump Washington.

The federal government’s battle over TikTok’s Chinese ownership and its antitrust case against Google are set to continue. And just like President Trump, President-elect Joseph R. Biden backs an overhaul of legal protections long afforded to social media companies.

Both Mr. Trump and Mr. Biden have called for stripping Facebook, Twitter and other social media giants of their Section 230 legal immunity from lawsuits over what users post.

To try to predict what the next administration will do, some tech executives are watching Bruce Reed, a top tech adviser to Mr. Biden who previously served as Mr. Biden’s chief of staff when he was the vice president in the Obama White House.

Mr. Reed co-authored an essay that argued technology companies’ legal immunity, which is codified in Section 230 of the Communications Decency Act, hurts children. He said social media platforms should be viewed as complicit in damage caused by harmful content online.

“If they sell ads that run alongside harmful content, they should be considered complicit in the harm. Likewise, if their algorithms promote harmful content, they should be held accountable for helping redress the harm. In the long run, the only real way to moderate content is to moderate the business model,” wrote Mr. Reed, who wrote the essay with children’s advocate Jim Steyer.

The stinging rebukes from both the left and the right have Big Tech critics feelings optimistic about a crackdown with new legislation or regulation in 2021.

New York University professor Vasant Dhar said he is encouraged by the bipartisan anger and hopes a new federal agency forms to audit and regulate social media companies, similar to the regulatory regime facing the financial services sector.

Mr. Dhar said lawmakers need to understand that the social media companies do not have consistent political biases so that the legislators do not get distracted from their legislative priorities for reining in Big Tech.

“Facebook doesn’t care whether it’s the Democrats or Republicans, they just care about what maximizes revenue, so they lean green,” Mr. Dhar said. “The danger I see that I wish, that I hope lawmakers will avoid is turning this into a partisan thing, saying that these platforms lean left or right. They don’t lean any way, they basically lean green.”

Regulations likely are coming but the federal government needs to hurry up and decide what those regulations will be, said Aron Solomon, senior digital strategist at NextLevel Studios, an organization dedicated to a high-tech makeover of the legal profession.

“How many times does [Facebook CEO] Mark Zuckerberg need to go in front of the Senate — 30, 50, 80?” Mr. Solomon said. “At some point, you either have to leave the guy alone, right, which you probably may as well just do, or you’ve got to be like, hey, guess what it’s not going to be like a $10 million fine it’s going to be a $10 billion fine.”

Still, some tech experts think the appetite for major changes will dissipate with the 2020 elections in America’s rearview mirror.

“My intuition is that we’re probably not going to see much there other than maybe some minor revisions and changes because centrists tacking, there’s a core group of moderates from both parties that I think are not going to want to dramatically overhaul Section 230,” said Gus Hurwitz, director of the Nebraska Governance and Technology Center.

“The groups from each party that do want to have substantial change are coming from completely different perspectives and poles and so I don’t know that there’s a compromise that could actually happen that would bring factions that do want dramatic change together.”

While tech experts and analysts view the Biden administration’s plans for Section 230 as an open question, they believe that it is much easier to predict the incoming administration’s actions involving individual disputes with platforms such as Google and TikTok.

Mr. Hurwitz said Google’s strategy of not fighting the Department of Justice’s antitrust case on every possible ground before the legal battle hits the courtroom has made it much more difficult for the Biden administration to amend the lawsuit to tailor it more to its liking.

“It’s pretty rare for the federal government agencies to drop litigation adopted by the prior administration once that litigation has commenced with the exception if there’s an opportunity to drop it without losing face,” Mr. Hurwitz said.

Similar to the feud with Google, the government’s dispute with TikTok likely will persevere under Mr. Biden.

“I think that too many Americans, given the press — fair or not — that TikTok has received over the past 18 months, I think to back off would not be politically expedient,” said Mr. Solomon of NextLevel Studios.

TikTok’s sudden growth and the Trump administration’s aggressive posture have led to other platforms developing tools similar to TikTok’s. Those competitors are looking to establish a foothold in the market, including Twitter’s new “Fleets” and LinkedIn’s stories that offer users a similar ability to post video messages.

The regulatory and legislative landscape for social media platforms also will be shaped by Georgia’s two runoff elections for Senate on Jan. 5, which will determine which party controls the upper chamber.

“So much depends on the Republicans’ and Democrats’ respective strategies for 2022 and 2024,” Mr. Hurwitz said. “If [Senate Majority Leader Mitch] McConnell decides, ’Look, the way to win big in 2022 is to appear to be willing to work with the Biden administration,’ that’s going to lead to a very different set of outcomes than if he decides, ’look the way for us to do well in 2022 is to be the opposition party and obstruct.’ And the same goes for the Biden administration and Senate Democratic leadership.”