First, a history lesson.
Radio was still in its crib in 1910, but there were already calls for Congress to regulate the nascent medium.
It took Congress until 1927 to pass the Radio Act to regulate unrestricted use of the airwaves. Congress then approved the more comprehensive Communications Act of 1934. That established the Federal Communications Commission (FCC) and created the regulatory protocols still in place today.
In fact, many radio station owners in the 1930s demanded congressional intervention. The problem is that there is only so much space on the electromagnetic spectrum. Broadcasters were stepping all over the signals of one another. No one controlled how much power each station radiated. There were problems with the allocation of frequencies. The FCC helped settle which station showed up where in the dial – and in which city.
The internet was similar when it started. Practically anyone could have a website. While issues of “access” and “bandwidth” remain an issue today, the internet was more (small d) democratic.
However, as activity online soared, Congress intervened. It approved the Telecommunications Act of 1996. A portion of that law addressed how internet firms were exempt from publishing indecent, obscene or even controversial content. That portion of the law is called Section 230. The 1997 Supreme Court case Reno v. American Civil Liberties Union found the “decency” portion of the broader Telecommunications Act to be unconstitutional. However, the High Court decided it could slice away Section 230 and allow it to stand.
Lawmakers from both sides have argued over retooling Section 230. The concern now is that big tech firms and social media giants like Meta (which owns Facebook), Twitter and others enjoy an impenetrable legal shield that safeguards them from any challenges to what their users post. In fact, there are arguments that social media algorithms are calibrated in such a way to promote and manifest only the most controversial, sometimes diabolical, content. That creates a vicious circle as such posts generate more attention, fuel outrage in the real world and spur similar videos and articles which feed on themselves.
Congress is nowhere close to fine-tuning Section 230. So, there is talk now of perhaps developing an entirely new regulatory regime. The reason? Lawmakers fear that what goes down online is so bad it could threaten national security.
With iPhones and mobile devices, it is almost as though there could be spies in the palm of users’ hands.
The Senate Judiciary Committee and Senate Homeland Security and Governmental Affairs Committee held two days of hearings recently to explore threats posed by social media firms.
Senators have met with Twitter whistleblower Peiter “Mudge” Zatko since late August. Twitter fired Zatko as its security chief earlier this year. Zatko told senators there is an opportunity for foreign intelligence services to burrow their way into Twitter and work undercover as a spy there. In fact, Sen. Tom Cotton, R-Ark., even suggested that foreign intelligence services “aren’t doing a very good job” if they do not try to place a spook inside of Twitter.
“Is that close enough?” asked Cotton.
“Yeah. That’s close enough,” replied Zatko.
Zatko characterized Twitter as “a gold mine” for spy agencies.
“If you placed somebody at Twitter, as I believe we know has happened, it would be very difficult for Twitter to find them,” testified Zatko.
Zatko says he has high confidence that an Indian agent worked at Twitter, mining information about the nation’s political parties.
Sen. Chuck Grassley, R-Iowa, said Zatko told senators that China has at least one agent at Twitter.
Additionally, just last month, a court convicted a former Twitter employee on spy-related charges linked to Saudi Arabia.
Zatko alleged that Twitter is slipping when it comes to addressing potential threats. He says the platform places profit over security. He said that Twitter siphons up everything.
“What’s the phone number? What’s the latest IP address they’ve connected from another IP address they’ve connected from? Is this the current email? How long have they been using that email with the account?,” said Zatko.
There is particular concern about Chinese-controlled TikTok.
“TikTok Is a disaster waiting to happen for our security and the privacy of our citizens,” testified Geoffrey Cain, Senior Fellow for Critical Emerging Technologies.
Security officials warned lawmakers to stay off TikTok because of the breadth of personal information the firm siphons up.
“I question whether we should allow an authoritarian regime to have a social media capability of the scale they have in our country,” said Sen. Mitt Romney, R-Utah.
Senators want social media firms to explain how their algorithms work, especially when it comes to spreading potentially dangerous content.
“The company’s response to those inquiries have been incomplete and insufficient so far,” said Senate Homeland Security and Governmental Affairs Committee Chairman Gary Peters, D-Mich., of Twitter.
The firms even stump former social media execs.
“I think what’s particularly terrifying is we actually don’t know what’s happening on these networks today,” testified Alex Roetter, former senior vice president for engineering of Twitter.
“It’s unfortunate that the American public must wait for whistleblower disclosures to find out about ways in which platforms knowingly and unknowingly harm their users,” lamented Sen. Rob Portman, R-Ohio, the top GOPer on the Homeland Security and Governmental Affairs panel.
“I have not Tweeted since I left,” testified Zatko to the Judiciary Committee. “I think people should look at the information they’re getting off it differently.”
A Twitter spokesperson characterizes Zatko’s testimony as “allegations riddled with inconsistencies and inaccuracies.”
Zatko said the Federal Trade Commission (FTC) is “in over its head” when it comes to regulating Twitter.
“Clearly what we’re doing right now is not working,” said Sen. Richard Blumenthal, D-Conn.
That is why Sen. Lindsey Graham, R-S.C., is prepping legislation alongside Sen. Elizabeth Warren, D-Mass., to create a new regulatory agency just for big tech firms. He notes that Congress created the FTC in 1914.
“A lot has happened since 1914,” said Graham.
One of Graham’s proposals is to require social media firms to hold a license – just like what was mandated for broadcasters beginning in the 1930s.
“If you had a license and misbehavior on your part could result in you losing your license that would get their attention,” said Graham. “This is a wakeup call for Congress.”
Perhaps that is one way for Congress to tackle the big tech problem without getting bogged down – again – in a debate about reforming Section 230. That conversation appears to be going nowhere. Social media firms continue to use Section 230 as a heat shield from lawsuits for their content.
It was not that long ago that new social media firms were the darlings of Capitol Hill. How quickly things evolved.
In the 1920s and the 1930s, radio broadcasters asked Congress to intervene. That is not the case now with big tech, at least not overtly. A new regime to govern social media firms would certainly carry significant First Amendment consequences, but so did regulating this new thing called “radio” nearly a century ago.