The Heritage Foundation recently slept through a real wake-up call from conservative Fox News host (and Daily Caller co-founder) Tucker Carlson.
On his Dec. 20 show, Carlson said Heritage’s tech policy recommendations “no longer represented the interests of conservatives,” but the business interests of Heritage’s tech donors.
He criticized a Heritage policy report that strongly defended Google, Facebook, and Twitter’s special government immunity from liability and responsibility in Section 230 of the 1996 Communication Decency Act.
Heritage quickly lashed out, saying in a statement that Carlson “made several false, outrageous, and unfounded accusations against the Heritage Foundation.”
Heritage claimed it “does not support policies that deviate from its principles” of “free enterprise, limited government, individual freedom, traditional values, and a strong national defense.”
Heritage added, “we welcome the opportunity to have a substantive debate on public policy.”
With that invitation — as an admirer of Heritage’s non-Section 230 policy work and as a conservative proponent of responsible Section 230 reform — let the substantive debate begin over Section 230 policy. (RELATED: FORMER GOOGLE ENGINEER: How Google Discriminates Against Conservatives)
Free Enterprise
Milton Friedman warned that being pro-business was one of “the two biggest enemies of the free enterprise system.”
He explained: “Almost every businessman is in favor of free enterprise for everybody else, but special privilege and special government protection for himself. As a result, they have been a major force in undermining the free enterprise system.”
Internet platforms are not ‘free enterprise,’ but long-time, big government beneficiaries of exactly what Milton Friedman warned against: “special privilege and special government protection.”
Since Section 230 became law in 1996, internet companies have enjoyed the extraordinary “special privilege” of being America’s only industry with a “special government protection” policy that it remains “unfettered by Federal or State regulation.”
Section 230’s biggest “special privilege and special government protection” is its sweeping immunity from civil liability and responsibility for whatever internet platforms do, or don’t do, on their platforms.
This special government immunity picks market winners and losers, and especially favors business models dependent on Section 230 regulatory arbitrage to capitalize benefits and socialize costs.
Is it principled, free enterprise policy to ignore the Internet Association’s special pleadings for corporate welfare, i.e. special government privilege and protection?
Its 2016 policy platform unabashedly asserted that Section 230 “provides “essential liability protections that have allowed internet platforms to scale and diversify.”
Translation: Section 230 immunity has become a government subsidy entitlement program on which winner-take-all internet platforms depend for outsized returns.
Today the Internet Association defends Section 230 by saying that internet start-ups depend on Section 230 immunity to attract venture capital funding.
Why do the world’s top venture capitalists need special government immunity from normal free enterprise risk to invest?
President Dwight Eisenhower’s 1961 Farewell Address presciently warned about the danger of regulatory capture that we face today with multiple, dominant, unaccountable internet platforms:
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.
In holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific-technological elite.
Section 230 is not principled free enterprise, but corporate welfare, crony capitalism and regulatory capture by the elites of the new internet industrial complex.
Limited Government
America’s founding fathers created a constitutional republic, a government with limits: separation of powers, checks and balances, and individual rights. (RELATED: TAKALA: Think Google Controls The News? It’s Worse Than You Think, Experts Say)
Section 230’s de facto tech-utopian anarchy policy of no rules online rejects the government half of limited government.
In anarchy, no one can enjoy any of the enumerated purposes and benefits of the U.S. Constitution: union, justice, domestic tranquility, common defense, general welfare, or the blessings of liberty.
Individual Freedom
In America, freedom comes with responsibility, because Judeo-Christian morals and ethics predicate America’s constitutional rule of law.
Our constitutional republic provides great individual freedom from harm, in protecting individuals from government tyranny, and from physical harms to the individual, the public, and property, from ever-present external threats and malefactors.
Section 230’s special immunized online freedom without responsibility corrupts constructive offline freedom from harm into a destructive online freedom to harm others’ life, liberty, and pursuit of happiness, e.g. child sex trafficking, opioid trafficking, addictive apps, cyber-bullying, etc.
Traditional Values
The U.S. Constitution’s predicate of Judeo-Christian morals, embodies, authorizes, and defends what is right, just, fair, true, and safe.
The moral basis of America’s justice system is the Golden Rule, treating others as you want to be treated.
The intrinsic amoral and anarchic authority in Section 230 inversely authorizes and defends what is wrongful, unjust, unfair, fake, and unsafe online; and it rejects the good, the balance, and the individual self-control of the Golden Rule.
The internet’s ubiquity means Section 230 undermines traditional values more than any other law.
Strong National Defense
Another destructive unintended consequence of Section 230 is a de facto unilateral surrender of public safety online.
For example, no entity’s intellectual property, trade secrets, or data is secure from China’s espionage and theft or from malefactors’ ransomware attacks online.
Section 230 online anarchy policy means in America there is no market incentive or government duty to create secure code, chips, or software, which in turn, means no one can be safe, secure, private, or protected online.
Attorney General William Barr shared his concerns about the unintended consequences of Section 230 on law enforcement in a speech to state attorneys general.
He said: “granting broad immunity to platforms that take no efforts to mitigate unlawful behavior or, worse, that purposefully blind themselves — and law enforcers — to illegal conduct occurring on, or facilitated by, the online spaces they create, is not consistent with the purpose” of Section 230.
In sum, Heritage’s Section 230 policy analysis and recommendation warranted Carlson’s strong criticism for deviating from all of Heritage’s longstanding conservative principles.
I trust Heritage will not let itself remain a house divided, advocating that freedom comes with responsibility in the offline world, but online, under Section 230, that only internet platforms should have unlimited freedom and special government immunity from responsibility.
Scott Cleland served as deputy U.S. coordinator for international communications and information policy in the George H. W. Bush administration. He is president of Precursor, a consultancy focused on responsible internet advocacy. He is the author of “Search & Destroy: Why You Can’t Trust Google Inc.,” and is working on his second book, “The Irresponsible Internet & How to Fix It.”
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.