Section 230 Reform in an Era of Big Tech – Ten Minutes with Sen. Ron Wyden

Below, we have provided the full transcript of our interview with Senator Ron Wyden that was part of our virtual event, Section 230 Reform in an Era of Big Tech. Read below to see the interview with a founder and author of Section 230.

Matt PERAULT:

Welcome to today’s event, Section 230 Reform in an Era of Big Tech. As Elisa said, this event is presented by Competition Policy International in collaboration with Duke University’s Center on Science and Technology Policy. And today’s event is sponsored by Google, which also supports our center at Duke. First, we’ve got a conversation with Senator Ron Wyden followed by a great panel with Section 230 experts and practitioners. Senator Wyden, thanks so much for joining us today.

Sen. Ron WYEDEN:

Hi, thanks for having me. Let’s have some fun.

PERAULT:

So for people who are familiar with the culture of Silicon Valley, there’s always a sense that a founder’s view of a product is unique and valuable. Think about Steve Jobs talking about Apple or Bill Gates, talking about Microsoft, Mark Zuckerberg, talking about Facebook. You too are a founder. You’re a founder of Section 230, you wrote the law back in 1996. So I’m curious as a founder, what are your thoughts about this landmark law? What has it achieved? And do you have any concerns about how it’s unfolded over time?

WYDEN:

Certainly no law is ever perfect, but what we thought to do, Chris Cox and I, back there in the middle ’90’s is think through how to deal with this incredible opportunity when much of Washington DC was just kind of locked in on this idea of just saying, “Let’s regulate pornography online,” and we didn’t think they had much of an idea for doing that, but certainly they weren’t prepared to deal with some of the issues that we even then thought were more important. So early on, we looked at the issue with respect to individuals and these platforms, which nobody knew a whole lot about. We made a fundamental judgment because we both believe strongly in the principle of individual responsibility and free speech, that the person who creates the content and posts the content is liable for it. That was a fundamental judgment and you can actually explain it in something resembling English.

That then caused us to think, “Well, we got the individual and we got the platforms. How do we figure out how to have rights and responsibilities?” We sort of came up with a stored in a shield. The platform got a little bit of a shield in what I just described, but we said, “If we’re going to really make sense for society, let’s tell those platforms we’ll give them the sword and they better use it, and they better it to moderate content and get rid of the filth and the slime and all this misogyny that people regret.’” I think early on the core belief in the first amendment and individual responsibility is what guided us.

I think by and large, it’s worked. By and large, I think it’s worked. Now, can we make it better? Sure. Plenty of things I’d like to improve on, but a big job frankly, is to deal with education, both in terms of the public and the light. New York Times, big article, Matt, after we got it off the ground, picture of Chris and me and all the rest. I went to school on a basketball scholarship, they made me look like I was seven feet tall in New York Times, 6’4″. They said, “These two men are the authors of the law that gave the green light to hate speech.”

I’m looking at that going, “Me? I’m not for hate speech. I had young kids, still had young children.” I said, “Wait a minute. I thought that the first amendment for all practical purposes gave the green light to 95, 97% of all the filth online. So if Chris Cox and I,” I’m in the Congress, Chris is retired, “If I got run over by a bus and they got rid of 230, most of that stuff that’s so objectionable to people would still be out there, not by dint of 230, but by dint of the first amendment.” We actually called the New York Times up and to their credit, they wrote a very long and very specific correction making it clear that they, New York Times—we think of them is certainly one of the most prestigious people in communications—they couldn’t initially tell the difference between the first amendment and 230, so we’re still trying to deal with that.

PERAULT:

There’s obviously a lot of confusion about what the law does and doesn’t do and then there’s also a lot of confusion, I think, about the landscape for reform. The way that you just framed it was by and large has worked well and that seems, I think, to be true, given what we’ve seen in the internet sector, but you also said that doesn’t mean it’s functioning perfectly and there might be things that we can do to improve upon it. What do you see in this era of reform, and there are so many proposals that are now circulating in Congress, what are the most promising areas of reform?

WYDEN:

Well, I take very seriously the concerns from civil rights groups about discrimination online, things like violating fair housing laws and false information about where or how to vote. There is a provision in the For the People Act which was originally introduced by then-Senator Barack Obama and would criminalize certain types of voter suppression, including online voter suppression. That seems to me to be an attractive idea to hold platforms accountable without gutting the core provisions of Section 230. We’re looking at those kinds of things.

But here is the test, Matt. I know we’re going to test the limits on time. The two part test I’ve got is does it protect free speech and does it ensure the right to moderate? Thus far, I haven’t seen a proposal on offer and you’re right, everybody’s got their own proposal. Let’s do this, let’s do that to section 230. I have not seen a proposal yet that meets that two-part test.

PERAULT:

Mm-hmm (affirmative). The theme today, obviously we’re at this event that’s being hosted by Competition Policy International and one of the themes of the events is the interplay between Section 230 and concentration in the tech sector and how we think about company power. What do you think about the prospects of reform in terms of how they would affect competitiveness in the tech sector and how they would affect large companies relative to small ones?

WYDEN:

Well, I will tell you that if you ask me to kind of look back and I think you were almost kind of touching on it, it also relates to looking forward. Clearly the Congress, the FTC, and the Department of Justice did not do enough to address this massive growth of these kind of corporate giants. First with cable companies, then Hollywood entertainment conglomerates, and finally the tech sector. Facebook and Google and Amazon gobbled up the big competitors and everything in sight. That’s an area that I feel strongly about.

The second area that I feel strongly about is US criminal law. For example, the Congress passed it really poorly thought through law called SESTA and FOSTA, and that was going to deal with these criminal traffickers and the like. All it really did is drove people offline to where you couldn’t get a search engine and the like. I actually, Matt, offered an amendment, which later became a major bill of mine to put more resources into criminal prosecution and really going after people. Frankly, a whole lot of what was said in the SESTA-FOSTA debate, the one bill that is on the books that I think is demonstrably pretty close to useless. We’ve even tried to figure out who’s getting prosecuted under it and the like, the big claim was “Senators, we’ve got to pass SESTA-FOSTA because that’s how we’re going to get Backpage,” this horrible online. What people didn’t come to learn got this much coverage in the press because it was all, “Congress passes SESTA-FOSTA. Two senators vote no.” Well, you can guess who 50% of that was. Backpage got busted, not by SESTA and FOSTA, but by using existing law, which I had talked about. Clearly the fact that existing law wasn’t used was a problem.

I would like to, because I think you talked about it with some of our folks, take an exception to one part of this big tech debate. Because I hear some of my colleagues get up and say, “No, the big problem in America, Section 230, the big problem is big tech.” Well, I got to tell you, big tech has got enough money to take care of any kind of lawsuit.

By the way, Facebook at the last minute signed onto SESTA-FOSTA because they thought they could get some good press. My horse in this effort from the beginning was on the little guy, the guy who didn’t have power, the guy didn’t have clout, the guy who didn’t have the visibility. Big guys can take care of themselves, they’ve always been able to take care of themselves, but we get reports for example, about who really benefits from 230 much like when we started out, it’s still the people without power and clout. I’ve gotten reports that, for example, the #Metoo movement, according to some scholars could never have gotten off the ground without the protections afforded by 230, because those sites would never have been willing to take on the kind of concentrated power associated with those people who were charged.

PERAULT:

Hmm. Last question for you. In drafting this law initially, you and Chris Cox were a model of bipartisanship. I’m curious about what you see as the prospects for bipartisanship now given that both Republicans and Democrats seem to want reform, but they seem to want different things out of it. Democrats, typically, I think want to see less problematic content online and Republicans are more concerned about platforms, efforts to moderate content, they want to see less censorship. Do you see opportunities for Republicans and Democrats to come together much as you and Chris Cox did in 1996?

WYDEN:

Well, I hope so. I’m a glass half full guy. We just got off the floor, I guess it’s been 10 days or so ago with the China bill. What broke it open because it was really stalled, was the bipartisan amendment. I wrote with Senator Mike Crapo on trade law enforcement to deal with supply chain problems and forced labor and that sort of thing.

But the real question for these bi-partisan efforts is whether you’re going to take ideas that are first and foremost sound policy and then build political coalitions rather than what happens so much in a polarized political climate. Everybody locks down to the partisan talking points and after they’ve embraced their partisan talking points, they run around and see if they can get a political coalition for it, and it is a prescription for trouble because if you haven’t focused on the good ideas, you got problems. What I’ve always done, people come and see me in the election season of all political parties, all kinds of points of view, and I think it’s fun and flattering. One of the first things I say is, “Give me an idea you’re working on or interested in pursuing with somebody who isn’t one of your loyalists, who isn’t in your camp.” Because I continue to believe, and it’s what Chris Cox and I talked about. You’ve seen all the biographies, they all say, “How in the hell did Chris Cox and Ron Wyden come together? You got a guy from Portland who was director of the Gray Panthers and wanted to play in the NBA. You got a guy from California, scary smart fella.” Really, I think Chris almost sees himself as a libertarian.

We just sat down and said, “Hey, let’s think about this whole new universe.” We found like I started off whatever it was, half an hour ago, whatever – I’m not really sure of the time. But we said, “There’s more to this than coming up with some very, I think almost tired even then, traditional ways for Congress to go, ‘Let’s go regulate part of pornography.’” I hated that stuff and the exposure to kids, but it was a question and it still is today. If you come up with good policies, often they’re very good politics. If your policies are flawed, you end up with neither. Not good politics and also bad policy. Why don’t we do this? Appreciate you guys being interested in 230 and related subjects and why don’t we put this in, in the position to be continued sometime?

PERAULT:

Wonderful. Thanks so much, Senator Wyden.

WYDEN:

Thanks for having me. Enjoyed it.