Big Tech readies itself for two very distinct grillings at Senate hearing

Get ready for some Senate questioning whiplash.

On Wednesday morning, the CEOs of Twitter, Facebook, and Google will once again log into a video chat service and make performative shows of supplicating themselves before our elected officials.

However, unlike July's antitrust hearing, this time Mark Zuckerberg, Jack Dorsey, and Sundar Pichai will have to answer for the presumed excesses permitted by Section 230 — but just what exactly those excesses may be will depend very much on whether it's a Republican or Democrat asking the questions.

The hearing, titled "Does Section 230's Sweeping Immunity Enable Big Tech Bad Behavior?," seems like, at first glance, a straightforward investigation into a provision of the Communications Decency Act of 1996. Of course, that assumes anyone can agree on what, precisely, the "bad behavior" in question really is. Therein lies the problem.

But first, a little refresher. Section 230 of the Communications Decency Act gives online platforms legal protection against being held liable for the things their users post (with some exceptions). Without Section 230, for example, Twitter might potentially be liable for the content of every tweet.

According to prominent conservative lawmakers like Senator Marco Rubio, Section 230 is a key plate in the legal armor allowing tech companies to maintain their so-called (and fictitious) "anti-conservative bias."

"The once nascent, scrappy internet companies that benefited from the protections afforded by Section 230 of the Communications Decency Act have become Goliaths intent on twisting and manipulating America's public square to their liking," wrote Rubio in an Oct. 15 press release.

Prominent Democratic figures, like current presidential candidate Joe Biden, on the other hand have taken the different (and likewise misinformed) position that Section 230 should be completely abolished in order to allow for the better regulation of tech platforms like Facebook.

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In a January interview with the New York Timeseditorial board, Biden expounded on his belief that Section 230 gives legal room for companies like Facebook to spread misinformation.

Pichai has his antitrust suit on. Credit: MANDEL NGAN / getty

"[The Times] can't write something you know to be false and be exempt from being sued," he told the interviewers. "But [Mark Zuckerberg] can.The idea that it's a tech company is that Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms."

It is these two, radically different, complaints to which Dorsey, Zuckerberg, and Pichai will need to respond.

In reality, it's unlikely that reforming Section 230 would have a materially negative effect on established tech giants like Facebook or Google. Those companies have the legal teams and bank accounts to deal with the fallout a radical change to Section 230 would likely precipitate.

This is more than just idle speculation. In his opening remarks Wednesday morning, Facebook CEO Mark Zuckerberg intends to advocate for a reform to Section 230.

"Section 230 made it possible for every major internet service to be built and ensured important values like free expression and openness were part of how platforms operate," reads a section of his prepared comments, published by USA Today. "Changing it is a significant decision. However, I believe Congress should update the law to make sure it's working as intended."

This statement likely came as no surprise to experts who've been tracking the growing chorus to repeal or reform Section 230.

Evan Greer, the deputy director of Fight for the Future — a self-described collection of artists, activists, technologists, and engineers advocating for digital rights — summed up the expected state of affairs following any Section 230 reform.

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"Facebook has an army of lawyers who will be able deal with the potential flurry of incoming lawsuits unleashed by poking holes in Section 230," she wrote. "The real victims will be individual Internet users, and more community oriented platforms like Wikipedia, Bandcamp, and Craigslist."

But because Section 230 is complex, and, likely to most voters, opaque, it serves as the perfect scapegoat ahead of the 2020 U.S. presidential election. At Wednesday's Senate hearing, expect Republicans and Democrats to beat that scapegoat with very different, but likewise nonsensical, sticks.