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Algorithms Are Designed By Humans: Josh Hawley Calls Out Big Tech Amid Push For Section 230 Reform


Washigton DC. At a Senate Judiciary Committee hearing on Wednesday, Marxh 8 2023 Sen. Josh Hawley (R-MO) spoke about section 230.

Recently, the debate on the role of tech companies in promoting user-generated content has been brought to the forefront with two major cases: the Gonzalez case and the Twitter case. In both cases, victims’ families challenged the immunity that tech companies enjoy under Section 230 of the Communications Decency Act, claiming that these companies have moved beyond merely hosting user-generated content to affirmatively recommending and promoting it.

Professor Schnapper, who argued on behalf of the victims’ families in both cases, explained the significance of this distinction. The wording of Section 230 seeks to distinguish between conduct of a website itself and materials that were simply created by others. While the original intent was to protect websites from being held responsible for defamatory material, the current reality is far different. Social media companies make money by selling advertisements, and they have developed sophisticated algorithms to promote material and keep people online. As a result, they are not merely delivering plain brown envelopes but building, promoting, and profiting from the content.

The algorithms used by tech companies are designed by humans and regarded as proprietary information. They are the method by which the companies achieve their goal of trying to interest a viewer in a particular video or text. Algorithms are used in a variety of ways, including autoplay, thumbnails, and news feeds, and they are critical to the business model of these companies. Professor Schnapper argued that this makes a legal difference under Section 230, and that the immunity currently enjoyed by tech companies is a form of super immunity that should be re-examined.

During the hearing, Senator Hawley asked Professor Schnapper what he thought would be the best way to address this problem from a policy and legislative perspective. While Professor Schnapper preferred not to frame a legislative proposal on the spot, he suggested that it would be appropriate for the committee to clarify the language of Section 230 to address the issue of affirmative recommendations.

The debate on Section 230 and the role of tech companies in promoting user-generated content is likely to continue as the courts deliberate on the Gonzalez and Twitter cases. While the original intent of Section 230 was to protect websites from liability for user-generated content, the current reality raises important questions about the responsibility of tech companies in promoting and profiting from that content. As technology continues to evolve, it is essential to re-examine the legal framework governing the relationship between tech companies and the content they promote.

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