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Big Tech has big power over online speech. Should it be reined in?

NBC News logo NBC News 1/21/2021 Ahiza García-Hodges
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When Twitter banned Donald Trump from its platform this month, the move was the culmination of months and years of escalations between the company and Trump, its highest-profile power user.

But it also raised some crucial questions: Should one company be able to wield such power? In a country that places outsize value on free speech, was there no legal recourse for one of the most powerful people in the world for being booted from one of the internet's biggest communities?

Simply put: There's little — if any — legal challenges to the power Twitter and other tech companies wield over online speech.

“These companies have become so bold because they’re limited shockingly little,” said Mark Grady, a professor at the UCLA School of Law who specializes in law and economics. “Every time you think of an angle that might be restrained upon their moderation conduct, it turns out to be a nonstarter. It’s really remarkable when you look at the body of law that we’ve got governing these entities that there’s very little that constrains them.”

Any attempts to regulate how the major U.S. tech companies moderate their platforms could prove to be a difficult undertaking within the current U.S. legal framework, according to legal experts. The First Amendment protects speech from intrusion by the government, while antitrust law was written to address issues like competition and consumer prices.

And yet, the question of what role the government has — or should have — in regulating how tech companies moderate their platforms has emerged as a major political flashpoint, albeit one with little bipartisan agreement.

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Facebook, Twitter, Google, Apple, Amazon and many other technology companies heightened this debate after they took significant steps in recent weeks to crack down on extremists following the riot at the Capitol that left five people dead.

Those moves were met with backlash from some conservatives and free-speech activists who argued that tech companies were unfairly censoring speech, and that their power in the digital realm had grown too great.

And while tech companies are facing antitrust scrutiny for their size and market power, answers to the question of what the government can do about their control of online speech are vague at best. That’s due in part to the fact that current antitrust laws aren’t focused on “the tendency of monopoly to produce less diverse speech,” Grady said.

He noted that the ability of these companies to moderate content isn’t limited by the First Amendment and they can’t actually be held liable for content posted by users because of protections granted by Section 230 of the Communications Decency Act. That protection has also become one of the more hotly debated topics around tech regulation.

A key tenet of existing antitrust law is related to protecting competition. But while many of these companies, including Facebook, Google and Amazon, have a history of acquiring competitors that posed a challenge to their businesses, the specific market power they displayed with content decisions over the past week is difficult to regulate under this definition.

Aaron Edlin, a professor at the University of California, Berkeley School of Law who specializes in antitrust economics and antitrust law, said regulators would have to prove that the companies conspired to silence voices or platforms even though they took nearly simultaneous action.

“If each of them individually reacted to what they saw happen at the Capitol, then it’s not so disturbing from an antitrust perspective,” he said. “If everyone opens their umbrella when it rains, I don’t look at that and say they must be in a conspiracy to open their umbrellas. There’s a good reason to open your umbrella when it rains, and there’s a good business reason for these firms to have made an individual decision.”

Edlin said power isn’t a violation of antitrust law even though their actions over the past week reinforce just how much power they have.

And that power only continues to grow as they attract more users and become more popular sources of information, according to Sinan Aral, director of the Massachusetts Institute of Technology Initiative on the Digital Economy and author of “The Hype Machine.”

Aral said antitrust cases are about the “effects of market concentration on consumer harm” but noted that the definition of consumer harm is shifting. Traditionally it was focused on price, but a concentration of power can create harm in many other ways and needs to be thought of more broadly to include causes like privacy, political polarization and the rise of extremism.

“These are all harms to society, but do I think they’re legitimate harms that can be cited in an antitrust case? Do they come and stem solely from market concentration? No,” he said. “I believe these are market failures in their own right that deserve their own legislative scrutiny.”

Aral said “antitrust is not a silver bullet,” but it’s not as simple as repealing Section 230, despite bipartisan scrutiny and efforts to do so.

“Obviously we have to be cognizant of the fact that they have undue influence over what information is put out into the world, so we need to think about how we develop the norms and laws around content moderation,” he said. “Repeal of Section 230 would not solve anything and would be a detriment to the free internet as we know it.”

He said companies would either wash their hands of attempts to moderate content or take such conservative stances that speech would be chilled and private censorship would flourish. Instead, he thinks the legislative branch should carefully reform Section 230 and define the boundary between free and harmful speech.

All of the legal experts NBC News spoke with for this article agreed that these major tech companies have incredible influence over the content that’s put out into the world. But checking this particular power will likely require overhauling existing legislation or enacting new laws, neither of which will occur soon.

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