Our polarized Internet world has generated at least one area of extraordinary bipartisan consensus: 77 percent of Americans agree Google, Facebook, and Amazon have too much power, according to a Gallup survey.
The near unanimous participation of federal, state and congressional antitrust authorities in probing Google, Facebook, and Amazon indicates extraordinary concern that their unchecked market power threatens competition for the consumer market.
Both political parties agree Section 230 of the Communications Decency Act, which grants Internet platforms immunity from liability for good-faith moderation of online content, in practice provides Internet platforms unaccountable power that warrants reform.
Section 230’s intermediary impunity loophole provides these dominant consumer gatekeepers with anticompetitive advantages that facilitate the monopolization of access to consumer demand online, thus undermining competition for U.S. consumer spending, which comprises 68 percent of U.S. GDP.
These gatekeepers, which do their best to avoid competing directly with each other, dominate competitive access to the online U.S. consumer market, leaving most potential competitors dependent on them to broadly reach online consumer demand.
How could this happen?
Online gatekeeper special interests, which commercially benefit from Internet interactions being viewed as protected free speech and not commercial conduct that can be judged as harmful and illegal, have subverted competition and created an unfair playing field.
Over years, their assiduous legal influence over successive Section 230 court precedents via extraordinary funding of legal positions pushing for maximally expansive court interpretations, has resulted in a de facto court-created loophole that has perverted the law’s intended immunity from liability contingent on “good faith” moderation of content, into de facto intermediary impunity without any need for good faith.
This ‘Bad Samaritan’ impunity loophole in the Good Samaritan-named immunity section of U.S. Internet law is what creates unchecked, anticompetitive power online that has made America’s most powerful least accountable.
How is Section 230 intermediary impunity anticompetitive?
Impunity is defined as exemption from punishment, harm, or loss. It confers extraordinary power.
America’s Constitution of separation of powers, checks and balances, and a Bill of Rights, makes every effort to prevent King George-like impunity, which I characterize in this context as an Internet platform intermediary’s impunity to harm or coerce others, to take away others’ freedoms, and to gain from harmful or illegal activity online.
In this Section 230 Internet intermediary context, impunity is best understood as a uniquely disruptive “taker power,” the power to “take” whatever one wants from others online without consequence because courts now routinely rule in summary judgments in favor of Internet platforms in Section 230 cases, effectively denying plaintiffs discovery and their right to access the courts for recourse and redress.
This unique taker power is inherently anticompetitive.
That’s because it perverts normal legal obligations and limits to operate a business responsibly into the opposite: disruptive impunity to facilitate and profit from harmful and illicit activity online, such as fraud, harassment, illegal drug trafficking, terrorist activity, spread of child sexual abuse materials, espionage, identity theft, etc., to drive out-sized business growth of revenue, profit, and market valuation.
In the “give and take” between Internet platforms and everyone else, there is no question that these companies have given consumers incredible benefits and value over the years.
However, the “give and take” is not balanced. They publicly trumpet the benefits they “give” their users, but have been nontransparent and deceptive about much that they “take” from everyone in return.
Thus, what is in question here is what Internet platforms have taken from others that has been harmful, illegal, and hidden.
Let’s try a thought experiment to better understand this unbalanced give-and-take and to learn more specifically how Section 230 can be anticompetitive.
First, imagine a sport or game where one team must play by the rules and the other team does not, because it has been granted impunity, which I call a “cheater’s charter” in this context.
What does a contest that involves Section 230 intermediary impunity look like?
The team playing with this cheater’s-charter advantage cannot lose, and the team that must play by the rules cannot win.
It is an anticompetitive, unfair playing field.
It is certainly not competition or free-market capitalism, because the outcome is predetermined.
Second, imagine what Internet platforms with impunity “taker power” can take from users, competitors, and the public that other companies cannot.
They can take all comers—criminals, predators, bad actors, harmful products and services, etc.—to virally grow fastest, biggest, and broadest.
They can take no responsibility for negligent, reckless, and willfully blind failure to curate take-all-comers content.
The can take advantage of, and profit from, users’ harmful, illicit behavior that abuses others’ trust, innocence, insecurities, vulnerabilities, and situations, by taking liberties with their attention, intentions, intimacies, relationships, and locations, without liability or safeguards.
They can take no responsibility for protecting minors from harm or exploitation.
They can take no responsibility for business practices that profit from harmful misinformation, disinformation, polarization, and addiction.
The can take exception to laws and rules everyone else must obey, instead doing “whatever it takes” to win.
Third, consider the “meddler models” that Section 230 intermediary impunity enables Internet platforms secretly to impose on users and competitors that other companies cannot.
With Section 230’s intermediary impunity, Internet platforms can program algorithms by default to meddle, which I characterize in this extraordinary context as operating like there is nothing they cannot involve themselves in; none of their prying into the private activities and proprietary affairs of others is out of bounds; and no one else’s data, pictures, or secrets is their own.
These platforms can also leverage their taker power advantage to meddle at scale by copying, reading, and exploiting most data and metadata that is processed by their many ubiquitous networks, apps, and hardware, without regard to the data’s authenticity, legality, security, or proprietor.
Now step back and imagine what disruptive Internet platforms with a cheater’s charter, taker power, and meddler business models can do with impunity that other companies cannot.
They can intercept and profit from competitors’ inside information, trade secrets, confidential business information, and proprietary data.
They can interfere with competitors’ direct-to-consumer relationships, branding, marketing, sales, customer service, and delivery.
They can interject into others’ business models discriminatory ranking, self-preferencing, and arbitrary rules, fees, and terms.
They can interrupt competition, market forces, and economic value creation.
In sum, this thought experiment shows that we do not have to imagine the ways that Section 230 can be anticompetitive. Authorities, policymakers, and others need only look for the Section 230 anticompetitive reality that is hiding in plain sight.
Google, Facebook, and Amazon’s extraordinary accumulation of market power over online access to the U.S. consumer market did not happen organically and entirely on merit. It was artificially enabled and facilitated by Section 230’s unintended, anticompetitive, intermediary impunity.
