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Sept. 20, 2021

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Josh Hawley vs. Internet: Missouri senator’s new book draws criticism from tech experts

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WASHINGTON — The blurb from Fox News host Tucker Carlson on the jacket of Sen. Josh Hawley’s new book refers to the Missouri Republican as the lone person in Washington concerned that “the tech monopolies became more powerful than the federal government.”

It’s an image that Hawley relishes, and one that informs the 194 pages of “The Tyranny of Big Tech,” published Tuesday. Hawley depicts himself as engaged in a lonely fight against Facebook and other tech behemoths.

The treatise, a culmination of Hawley’s years-long battle with the industry, offers many suggestions he’s already introduced as legislation.

None these proposals have moved forward, which Hawley argues is evidence of their merit.

“Big Tech promptly mobilized its legions of lobbyists and think-tank apologists and chattering acolytes in the press to search, fix, and destroy my legislation, to incinerate it and to send a message, as mafiosos do, that anyone who would dare challenge Big Tech’s supremacy would be incinerated alongside,” Hawley states in the book.

One chapter, called “Rigging Washington,” focuses on one of Hawley’s prime targets. Section 230 of the 1996 Communications Decency Act enabled social media companies to become multibillion dollar businesses by shielding them from liability for content posted by their users.

Hawley has long advocated for its repeal or overhaul. But tech policy experts say the short history of the law he provides is riddled with misrepresentations.

“Everything he says about anything legal— and a lot of other things— is completely false,” said Berin Szoka, the president of TechFreedom, a Washington-based technology think tank which opposes regulations on the industry.

THE CASES THAT SHAPED THE INTERNET

Section 230 was a response to litigation in the 1990s involving content moderation on early Internet forums. The legislation, developed in the House, was eventually paired with a Senate measure aimed at protecting children from obscene content online.

“Big Tech loved this solution— but wanted more, more immunity, no strings attached, and went to court to get it,” Hawley writes.

“The U.S. Supreme Court got the redrafting effort underway barely a year after the Communications Decency Act became law. It struck down as unconstitutional the requirement that tech companies remove obscenity — but left intact Big Tech’s legal immunity from suit, something no other media companies enjoyed. And still Big Tech wanted more.”

But Google, Facebook and other contemporary tech firms didn’t exist in 1997, when the Supreme Court ruled 7-2 to strike down the obscenity provisions. And the lead plaintiff was the American Civil Liberties Union, which argued the case on free speech grounds.

The only acknowledgment of the ACLU’s role is in the footnotes at the back of the book when Hawley cites the case’s name, Reno v. ACLU.

Some tech interests were also involved in the lawsuit, including cyber rights groups such as the Electronic Frontier Foundation. But a broad spectrum of organizations joined the ACLU in challenging the obscenity provision including the American Library Association, various LGBT rights groups, Planned Parenthood and websites that provided information on AIDS and safe sex.

Hawley also contends that at “Big Tech’s behest” courts expanded the scope of the protections for tech companies and narrowed their requirements.

“Such that when the dust had cleared from this strenuous bout of judicial renovation, Section 230 had been completely rewritten,” Hawley writes. “Under the new and improved statute, tech companies could shape or edit content without liability, could take down content without any show of good faith or fair dealing, and could display content they knew to be illegal— and no one could challenge any of it in court.”

In his footnotes, Hawley refers to Zeran v. AOL, a 1997 case which marked the first time an appeals court ruled on the law.

Kenneth Zeran sued AOL after an anonymous user posted his phone number and name on a bulletin board in relation to images of offensive merchandise with slogans making light of the Oklahoma City Bombing.

AOL removed the post, but Zeran argued the company had been negligent. The court found AOL was protected by the Section 230.

“He claims this is a rewriting,” Szoka said. “What he doesn’t tell you is Zeran wasn’t written by some crazy liberal. It was written by the chief judge of the 4th Circuit, a Reagan appointee, J. Harvie Wilkinson, who was the best known conservative judge in the country.”

Eric Goldman, a professor at Santa Clara University’s School of Law who specializes in technology law, said the most charitable response to Hawley’s account is that until the Zeran ruling no one could say for sure what Congress meant with Section 230.

But he noted that Congress affirmed the Zeran ruling when it passed the 2002 Dot Kids Act. It explicitly cites the case when it says, “The courts have correctly interpreted section 230 (c), which was aimed at protecting against liability for such claims as negligence.”

Goldman, co-director of the High Tech Institute at Santa Clara University, said this legislation should dispel any notion that courts strayed from Congress’ intention.

“Congress literally told us what they wanted and said they were OK with how things were going,” Goldman said. “It’s hard to believe that Sen. Hawley can be this mistaken. It’s more likely that he has chosen not to accurately represent things.”

Responding to the criticism, a spokeswoman for Hawley’s publisher pointed to a 2020 statement from Supreme Court Justice Clarence Thomas regarding a case the Supreme Court declined to hear. Thomas agreed with the court’s decision to decline the case, but released a statement contending the lower courts have interpreted the statute to provide more immunity than the law requires.

“The Zeran case, which Josh cites, says just this, that a platform’s decision ‘to publish, withdraw, postpone or alter content’ does not trigger liability, but is protected by Section 230… Josh’s argument is that this is not what the statute itself actually says. Justice Clarence Thomas has made this same argument about Zeran and Section 230 in his opinion in Malwarebytes v. Enigma Software,” said Lauren McCue, a spokeswoman for Regnery Publishing.

Szoka said Hawley’s characterization that Section 230 provides carte-blanche immunity for illegal content is untrue—as is the notion it’s carveout that only applies to major tech firms.

The law states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This language means Twitter, for example, can’t be sued for what one of its user posts, but it also means that you can’t be sued for retweeting another user.

“He claims this a special protection for Big Tech. That’s not true. It applies equally to anyone in this situation, so that’s big social media sites. It’s Wikipedia. But it’s the smallest website with comments. It’s also Donald Trump because Trump himself invoked Section 230 to get a lawsuit dismissed when he was sued for retweeting someone else’s content,” Szoka said, referring to a 2017 case.

“If we got rid of that… the Internet would just be impossible, not just for big tech sites but for retweeting someone else’s content. Every time you did that you could be sued, so social media would be unworkable for everyone, big, small, users, doesn’t matter.”

‘THEY HAVE TRIED TO CANCEL ME’

In his book, Hawley portrays both political parties as overly cozy with the industry, undermining his quest to limit its power.

Democrats, he argues, found an ally for their social progressive agenda in the tech industry, while his fellow Republicans have either accepted the companies’ money or are sheepish about confronting corporate power.

Hawley claims he was asked to back off from his push to subpoena Facebook CEO Mark Zuckerberg and other tech titans as the 2020 election approached.

“After my vocal calls for a hearing, I was approached on the Senate floor by one Republican colleague who asked me to stand down and let the issue drop. My staff was lobbied intently by others. I refused,” Hawley writes.

He doesn’t identify the senator. His office referred questions about the book to his publisher, Regnery, which didn’t respond to a request for comment about the anonymous senator.

A small conservative Washington publisher, Regnery took over the book after Hawley’s original publisher Simon & Schuster canceled his contract. It parted ways with Hawley amid the fallout from his lead role in objecting to the Electoral College results on Jan. 6 and for raising fist in solidarity with a pro-Trump crowd outside the Capitol shortly before the deadly riot.

Hawley glosses over the fist pump, but he revisits the row over his contract in the book’s opening sentence.

“This is a book the corporate monopolies did not want you to read. Corporate America tried to cancel it, just as they have tried to cancel me,” Hawley declares on the first page of the preface.

This week, Hawley accused The Washington Post of trying to “censor, cancel and silence” him during a livestreamed interview about his book. The comment came during a back and forth with the reporter about his Electoral College objection.

While Hawley briefly addresses his objection to Pennsylvania’s 20 electors, the book is more focused on another election from a century earlier.

He devotes several chapters to President Woodrow Wilson, arguing that the early 20th Century Democrat was the nation’s “first prominent corporate liberal.” His victory in 1912 election “set the stage for all that was to follow, right up to the emergence of the globalizing, monopolizing Big Tech,” Hawley wrote.

But when reviewers from Wired and The New Republic this week questioned Hawley’s historical analysis in drawing a line from Wilson’s policies to Zuckerberg, he accused them of political bias.

“These folks try to take me to task for calling Woodrow Wilson a corporatist, a position the authors appear to dislike because Wilson was a Democrat,” Hawley said on Twitter Wednesday in response to the criticism.

The 1912 election has long been a source of interest for the senator, whose previous book on President Teddy Roosevelt focuses on his contest with Wilson and incumbent Republican William Howard Taft.

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