In the sports world, it’s called “working the refs,” only this time it’s not a game.

Players or coaches will complain to referees about unfair treatment for an entire contest in hopes of receiving a favorable, crucial call at the end. There is a version of “working the refs” occurring today in the ongoing debate around the responsibility of major tech giants such as Google LLC, Twitter Inc. and Facebook Inc. to control online content. However, instead of a notch in the season’s win column, the stakes involve rights of free speech granted under the First Amendment and literally billions of dollars in advertising-supported material.

And the current debate is also about trust of some of the largest companies in the world.

“The tech industry looks at the public and says: ‘We do not need to be regulated, you can trust us,’” said Klon Kitchen, a National Security Institute visiting fellow and director of the Heritage Foundation’s Center for Technology Policy. “Increasingly, the consumers and government look at them and say: ‘Well, we don’t.’”

Focus on Section 230

Kitchen spoke on Wednesday as part of a virtual panel discussion arranged by the Lincoln Network and the National Security Institute at George Mason University’s Antonin Scalia Law School to discuss tech platforms’ responsibility. At the center of the discussion was Section 230, part of broader legislation passed by Congress in 1996 which protected online platforms from liability for posts by users. It also granted them authority to moderate content without being held liable as publishers themselves.

Scrutiny of Section 230 has intensified dramatically in recent weeks. Last month, President Donald Trump signed an executive order to limit Section 230’s legal protections. On Wednesday, Senator Josh Hawley and the U.S. Department of Justice both introduced proposals that would also limit protections for technology firms. Former vice president and current presidential candidate Joe Biden has also called for repeal of Section 230.

Defenders of Section 230 believe that the current hue and cry is more about interest groups or political parties seeking to filter free speech at a time of national polarization.

“It’s working the refs,” said Carl Szabo, vice president and general counsel at NetChoice. “It’s trying to force the platforms to make decisions that are not necessarily best for their users or their business. Section 230 is what helps prevent the internet from being a cesspool.”

Impact on ad revenue

A reminder of how tech companies moderate content under Section 230 could be found on Tuesday when Google banned two sites – The Federalist and Zero Hedge – from its advertising program, citing racist commenters that accompanied ad-supported content. The Federalist was later reinstated by Google after the comments were removed.

Google’s recent actions point to a dilemma facing many social media websites: Advertising pays the bills. Google’s advertising revenue alone was $134 billion in 2019.

“If you’re Colgate, you would prefer not to be next to whatever diatribe happens in the comment section,” Kitchen said.

Some groups are not even waiting for Congress to take action on Section 230. In late May, former Facebook employees and critics of the site filed a confidential whistleblower complaint with the Securities and Exchange Commission claiming that the social media giant allowed open drug sales and other criminal activity on its platform. In response, a Facebook spokesman noted that the company routinely disclosed potential risks related to content in SEC filings.

Rick Lane, chief executive officer of Iggy Ventures LLC, has been outspoken about the need to reform Section 230 protections. He has claimed that the situation is analogous to the Pinto, a Ford car that became infamous in the 1970s for bursting into flames after a collision.

“We agree with the safe harbors, we agree with moderation, but we need to make sure we’re not building Ford Pintos,” said Lane. “There’s a long history of Facebook not taking these types of situations seriously. Section 230 will be amended in a way that makes sense.”

Curbs on sex trafficking

Section 230 has only been amended once since its inception and the effectiveness of that change remains a subject of debate today. Congress passed legislation in the spring of 2018, known as FOSTA-SESTA, to prohibit online sex-trafficking businesses and ads.

Although the legislation received overwhelming support in Congress at the time, FOSTA-SESTA has since come under fire for failing to reduce sex business advertising dramatically and undercutting police investigations into human trafficking.

In December, new Congressional legislation was introduced to examine FOSTA-SESTA’s impact, based on claims that the law’s elimination of online platforms increased the threat of physical violence for sex workers who could no longer vet potential clients.

“We’ve seen a rise in crime and rise of abuse as a result of the only amendment to Section 230,” Szabo said. “There are police on record saying that FOSTA-SESTA has made their job harder.”

Amid the debate surrounding Section 230, the tech industry is also having to confront rising doubts about its credibility and control. A recent study from the Pew Research Center found that 74% of Americans don’t believe that social media platforms will be able to prevent election interference in 2020.

“Silicon Valley hasn’t communicated how curation works,” said Renee DiResta, technical research manager at the Stanford Internet Observatory. “That is a serious lack of understanding which allows political actors to push a particular narrative.”

When the Communications Decency Act, which contained Section 230, was passed in 1996, Twitter, Facebook and Google didn’t even exist. There was a sense at the time that online publishers should be nurtured and not subjected to prosecution, but instead would be granted the authority to engage in “good Samaritan” moderation of objectionable content.

The world has changed significantly since then, and all three companies are megabillion-dollar giants, while two of them hold a near-monopoly on digital advertising. Twitter and Facebook posts now control world events, move markets and set the tone for political discourse. As with “working the refs,” the debate over Section 230 is now centered on power and control.

“We’ve given a lot of power to the moderators because we want them to be moderators,” Szabo said. “It’s less about the First Amendment and more about free speech at the end of the day. A lot of people are trying to pull the treads of Section 230 and if you do it, the whole quilt will unravel.”

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