How the red-herring of a politicized Section 230 and “conservative censorship” distracts from a bipartisan national privacy act.

Remember Cambridge Analytica? A lot has happened since, but Cambridge Analytica was the ultimate data privacy scandal of 2018. It was an occasion that initially summoned Mark Zuckerberg before Congress, producing cringe-worthy sound bites from legislators (“Senator, we run ads”).

This first round of tech hearings was remarkable in that both sides of the aisle seemed uniformly disturbed by the excesses of Silicon Valley’s business model while also revealing that some members barely understood the basic premise of surveillance capitalism. More recently, Big Tech’s executives have been hauled in—virtually this time—for Congressional grilling during Covid-19 on the fraught topics of antitrust and Section 230 of the Communications Decency Act. 

The Section 230 debate flipped from data privacy to a conservative canard to allege platform bias without evidence as a way to energize “the base” and “own the libs.” Suddenly, its consequential and possibly hasty repeal is a bargaining chip to remove Confederate names from military bases. We’ve clearly lost the plot, and Section 230 is now just shorthand for everything that is wrong with the internet. 

It’s understandable how Congress has largely forgotten the original reason to bring Zuckerberg to Capitol Hill, which was privacy. A grandstand on “censorship” serves to politicize the fine line between content moderation meant to make platforms safe for advertising. Paradoxically the platforms, private clubs who make their own rules and make it up as they go along, also espouse free expression to make their platforms represent uniquely American ideals. The grandstanding on aggrieved bias draws our attention away from the real problems of data privacy—a uniquely tri-partisan issue, as Republicans, Democrats, and independents tend to agree on privacy and tech issues when polled. 

Why the Privacy Debate Was Hijacked

Let us flash back to April 10, 2018, to the now-infamous Senate hearing titled “Facebook CEO Mark Zuckerberg Hearing on Data Privacy and Protection.” In that hearing, Senator Ted Cruz (R-TX) made the first pivot away from the subject of privacy, instead conjuring up the newfangled demon of platform bias

Senator Cruz had a very good reason to change the topic from privacy when it was his turn to question Zuckerberg. Close observers of the Cambridge Analytica scandal knew full well that Cruz was Facebook’s first major presidential candidate client in 2016, before it took over the Trump campaign after the Republican primaries. Indeed, the scandalous Facebook data in question at the hearing was certainly used to help build illicit profiles used to target US voters during Cruz’s campaign. (Whether it was effective is a red-herring preoccupation of others, not addressed here.) 

Naturally, Cruz benefited from using his privileged time with Zuckerberg to introduce a strawman argument hinging on petty partisanship rather than seize upon his dutiful opportunity to put the Facebook CEO on the spot about his transgressions over the data privacy “of the American people,” the abuse of our voter data, and key questions surrounding our election integrity.

Theoretically, Cruz could have openly investigated Cambridge Analytica’s deceptions to his own campaign, misrepresentations made to a dissatisfied client, and how the company continued to use illicit data for the Trump campaign. The Senate Select Committee on Intelligence documented in its final Russia investigation report how convicted Trump campaign operative Rick Gates told the FBI that Cambridge Analytica deceived the campaign about not being entirely “based in the US” (p.677, SSCI vol5). This was despite being “unable to obtain the corporate communications of Cambridge Analytica or SCL Group, which had already been seized by UK authorities.” (p.664, SSCI vol.5) The perpetrators of the data harvesting scheme would later settle with the FTC for deceptive practices, enter a guilty plea to the criminal offense of ignoring the British data protection authority, and get banned from serving as a director by the Insolvency Service. 

Instead of sticking to the hearing’s agenda and holding Facebook to account over Cambridge Analytica, Cruz deftly unveiled the shiny object of Section 230 to distract from the thorny issues of data rights and democracy posed by his own campaign vendor. Cruz’s first question to Zuckerberg was: “Does Facebook consider itself a neutral public forum?” 

Until that moment, Zuckerberg was fielding questions from the joint committees about data privacy and protection, the slated topic of the hearing. Parrying Cruz’s pivot, Zuckerberg attempted to draw the junior senator from Texas into a nuanced explanation of how certain categories of content are prohibited, such as “hate speech, terrorist content, nudity, anything that makes people feel unsafe” as a way of making room for what the company likes to refer as a “platform for all ideas” (except the harmful ones). Cruz sternly interjected Zuckerberg, inserting the admonition that “the predicate for Section 230 immunity under the Communications Decency Act is that you’re a neutral public forum.” The boyish, pallid executive dodged by saying “Well, Senator, our goal is certainly not to engage in political speech. I’m not that familiar with the specific legal language of the law that you speak to, so I would need to follow up with you on that.” 

Section 230 is also commonly known as “twenty-six words that created the internet” and so it strains credulity that Mr. Zuckerberg claimed not to be that familiar with it. But without an assertive response to Senator Ted Cruz, Zuckerberg all but ensured that other lawmakers would jump on the paddy wagon and stir up trouble around Section 230 instead of worrying about a new national privacy act. Scoring partisan points trumps solving privacy problems.

Cruz went on to demonstrate a characteristic bad faith argumentation technique. By reciting a brief catalog of anecdotes narrating how Facebook took action on conservative pages, ranging from the “Chick-fil-A Appreciation Day” page to Diamond & Silk, Cruz performed a theatrical gesture to put the company on the defensive, especially when the company doesn’t publish data to refute allegations of bias. Senator Cruz didn’t reference any systematic or peer-reviewed study of alleged platform bias because it doesn’t exist. Listing fast food brands and online influencers associated with the conservative movement signaled aggrievement. Cruz teed up politicization of the law, Zuckerberg took a swing and scored one for divisive hyperpartisanship, responding: “First, I understand where that concern is coming from because Facebook and the tech industry is located in Silicon Valley which is an extremely left-leaning place.” Suddenly, Section 230 got its 15 minutes of fame.

We return to this hearing from years ago with such vivid detail to appreciate how since the subject shifted and the tone was set for grievance without evidence, not much has shifted in the rhetorics over Section 230. The allegations of social media platforms being biased against conservatives haven’t cooled off since Cruz’s pivot from Cambridge Analytica to Section 230 in 2018. Despite no evidence of systematic bias emerging, the platform bias narrative persists, spreads, and mutates. Conservative personalities dominate the top 10 lists of Facebook posts shared, according to the company’s own analytics tool, CrowdTangle. Even Facebook’s own dashboard for advertisers shows that users who Like Donald Trump’s page show a far higher propensity to engage with Facebook posts and do things like click on ads, compared to the average user. The conservative Facebook user is a more perfect customer for the algorithm, and so it should be no surprise that content targeted at conservative Facebook users performs exceptionally well on the news feed. 

One reason it has been difficult to identify empirical data indicating a pattern of bias is because in most cases, the analytics suggest the opposite. It’s almost as if the platform is optimized for conservative personalities, content, and usership. How will this shape Facebook’s approach in the event of likely Section 230 reforms?

“One reason it has been difficult to identify empirical data indicating a pattern of bias is because in most cases, the analytics suggest the opposite.”

The Cambridge Analytica Scandal Comes Full Circle

Fast-forward past the more recent Zuckerberg hearings through to the interregnum, this lame-duck period fraught with peril between the election being called, the Electoral College meeting to vote on behalf of the voters, and the Inauguration of a new presidential term on January 20, 2021. Bad faith, cherry-picked anecdotes constructing flim-flam, unverifiable allegations of bias signifying pure partisan grievance are not only useful to “work the refs” but have also been applied to questioning, challenging, and spreading doubt about the election of 2020. 

As Twitter and Facebook aggressively stepped up their actions to rapidly label posts by the president and supporting politicians spreading dangerously false or misleading claims about the election, conservative personalities have been flocking to alternative social media platforms, especially the Twitter clone called Parler, which promises minimal content moderation to attract aggrieved users who equate the application of warning labels to censorship or at least platform bias. Parler has enjoyed a top spot in the most downloaded app lists since the election, although its user base remains a tiny fraction of Twitter’s daily active users (millions vs. hundreds of millions).

And so the saga that began with Ted Cruz’s pivot from privacy to Section 230 at the Cambridge Analytica hearing comes full-circle back to the originators of the dodgy data shop. The Wall Street Journal reported that Rebekah Mercer, daughter of far-right GOP megadonor, computer scientist, and hedge fund quant Robert Mercer, a funder of GOP-friendly technology and media companies (Breitbart), have been among the funders of Parler. This coverage prompted a formal response from Mercer herself, who defended the family’s investment in Parler, which she called “a beacon to all who value their liberty, free speech, and personal privacy.”

This is the same Mercer who infamously funded the creation of Cambridge Analytica, the reveal of which triggered the “techlash” of the past few years and accelerated the pace of passing privacy laws at the state level. The 2020 election led to the passage of Proposition 24, which upgraded the California Consumer Privacy Act (CCPA) to its version 2.0 incarnation as the California Privacy Rights Act (CPRA). During the drafting of the CCPA version 1.0 bill, when an industry lobbyist invoked the well-worn trope that privacy regulations would “stifle innovation,” the privacy activists advocating for the California laws would only have to utter two kryptonite words (the first word begins with ‘C’ and the second begins with ‘A’). 

The new Congress in 2021 will take up many issues as the majority hangs in the balance ahead of the runoff elections in Georgia, and both Section 230 and a national privacy act will be on the agenda. The debate over platform liability swings the pendulum in both directions, with Republicans arguing it allows platforms to moderate content too much while Democrats, including President-Elect Joe Biden, arguing that it allows platforms to moderate content too little. 

But the advertising and tech industry will want a national privacy bill on the agenda because these businesses are understandably worried about additional states succeeding at California’s accomplishments in passing data protection state laws, resulting in an elaborate and needlessly intricate patchwork of privacy protections, depending on state residency. The industry lobbyists will be pushing the House and Senate to make moves on a national privacy law to head off more states protecting the rights of their residents. 

If we hadn’t spent the last two years of the Trump term chasing Section 230 red-herrings to “own the libs,” we could have been digging into the devil’s-in-the-details discourse on data privacy instead, an urgent matter to keep the data and monetization flowing.

The issue of a national privacy act should prove uniquely bi-partisan, a rare unifier issue. Although, it remains to be seen whether misinformation-laden, cherry-picked argumentation over Section 230 will keep distracting commentators from an arguably more fundamental and important legislative debate and the burning questions that need to be discussed, among them: How will Congress pass a national privacy law that is at least as good as California’s latest iteration? How will Congress figure out how to better align with the European General Data Protection Regulation (GDPR) to ensure cross-border data trade can continue into the future? The strategy of leaning on flimsy treaties without the backing of a protective federal law hasn’t been working out very well. Privacy activists like Max Schrems keep dismantling the mechanisms that enable cross-border data trade from Europe. The future of transnational data trade is at stake. Too much tinkering with Section 230 to pacify partisans would make platforms like Wikipedia fall by the wayside

Do we even know if Section 230 will be solidified into the USMCA anyway? Staying focused on privacy rights leads us to more constructive recalibrations of power between people and platforms, getting us closer to core issues, where aggrieved allegations of platform bias are better understood as the second-and-third-order effects of the surveillance capitalism business model.