The Vergecast - Sen. Ron Wyden says Trump’s Section 230 FCC shuffle is a ‘disaster’
Episode Date: August 4, 2020The Verge's Nilay Patel and Adi Robertson talk to Senator Ron Wyden, who co-authored Section 230 of the Communications Decency Act. Wyden discusses the forced sale of TikTok to a US-based company, the... bills out to reform Section 230, his new privacy bill preventing law enforcement from buying data on the open market, and how Trump's handling of recent FCC nominations is a "disaster." Learn more about your ad choices. Visit podcastchoices.com/adchoices
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Hey everybody, it's tonight from the Vergecast.
A special quick turnaround interview episode today.
This morning, Addie Robertson and I spoke to Senator Ron Wyden.
He's the co-author of Section 230.
That's the law that basically allows social networks to exist in this country the way that they do.
We asked Senator Wyden about the TikTok controversy.
He had some clear thoughts about Trump trying to force a sale of TikTok.
It's probably not what you think.
We also, of course, talked about Section 230, the various bills in Congress that were to perform Section 230.
One thing I want to call out there, the senator references Sesta Fasta a number of times.
We don't want to burn our time with him explaining it.
So very quickly, Sessa Fasta is a law that was passed that carves out 230.
It makes platforms liable through use for sex trafficking.
It is very controversial how effective that law is and who it helped and hurt.
You'll hear the Senator discuss that.
Senator Wyden also announced a new privacy bill that he'll be introducing in Congress.
It would make it illegal for law enforcement to buy data on the open market that
otherwise would need a warrant for under the Fourth Amendment. And lastly, we talked about the chaos
at the FCC. President Trump has blocked the renomination of a Republican FCC commissioner
who expressed First Amendment-based hesitation for Trump's plan to have the FCC regulate,
Twitter, Facebook, Google, other social networks using 230 as a tool. That is a big deal. You'll hear
the Senator express his reservations about that very clearly. All in all, a jam-packed 30 minutes
with Senator Wyden, you covered as much as we could.
Check it out. I think it's very informative.
Senator Ron Wyden, welcome to the Vergecast.
Hey, good to be with you all.
And Addy Robertson is joining me as well. Welcome, Addy.
Hi.
So, Senator, a lot to talk about. Obviously, we want to talk about 230.
Sounds like there's some privacy stuff to talk about.
But I could not begin this interview without talking about TikTok, which is a subject of full debate related to the 230 issue.
How are we going to regulate social platforms?
how are we going to monitor what's happening on them?
It sounds like President Trump really wants TikTok to sell.
He said if they don't sell to Microsoft or somebody else by September 15th, they will be out of business.
What is your view of this entire process?
Well, as you all know, there is a process for the government to essentially evaluate something like this with security risks when it comes to foreign-owned companies.
And my view is that it's not my job or Donald Trump's job to basically throw a lot of politics into the decision.
So let me tell you what I think the issues are, because this is an enormously important question.
And privacy is, as you really suggested, an issue with TikTok, but I'm more concerned about two other issues.
First, my view is that it is fundamentally unfair from a competition standpoint for China's
to restrict access to U.S. social media companies when at the same time, Chinese-owned apps are allowed
to freely operate here. And my view is that is a prescription for China to basically dominate
the future of the Internet. So that's my first concern. Second, I think we all know there have been a number
of stories concerning how TikTok censors views that are critical of the Chinese
government and despite its promises, as long as TikTok is a Chinese-owned company, there's always
going to be the potential to silence voices that Chinese government doesn't want you to hear
or can influence American public opinion. So that is kind of the way I'm approaching it,
and there are a host of issues that are part of this whole discussion, but those are the
ones, I think, that are central to the debate.
So one of those issues is broad, covers every potential Chinese app, right?
Facebook and Google and the rest are not allowed to operate in China.
We should take a hard look at Chinese apps operating here.
That's a general idea.
And the other one is very specific to TikTok.
They have a set of moderation policies.
But I look at the TikTok situation, and I just see this rhetoric about banning it and
shutting it down just on an accelerated curve since the reports that a bunch of teenagers
disrupted the president's rally in Tulsa.
Like that happened and suddenly we're going to shut it down by the 15th unless they sell.
Do you think the current process is appropriate?
I think, yes, there is a process now to essentially look at the central kinds of questions,
which to me start with a serious evaluation of security risks when it comes to foreign-owned
companies and look, everybody understands that it's not just a rumor, there's an election coming up.
So everybody gets that. But it's not Donald Trump's job or my job to basically have politics
dominated. So those are the concerns that I'm looking at. Do you think it's appropriate for
Microsoft to have to pay the treasury if they purchase TikTok, which is something the president said
yesterday? I'm not going to go any further, I think, than outlining my concerns now. And obviously
all of this is going to be debated.
Yesterday, someone at Microsoft said this might be a bad process, but it'll get to the right
outcome. Do you think that's accurate?
I think that the process that exists in the United States is a process that best strikes
at the core kinds of issues, which I have described here to a lot of time thinking about,
and I'm going to leave it at that.
All right.
You said just before we came on, you want to talk about some privacy developments that you're
excited about.
what's going on there? In the next few weeks, I'm going to roll out a new piece of legislation
really based on where the debate about privacy and related issues are. And the bill will be
introduced shortly under the title, the Fourth Amendment is not for sale. And basically what it
would do, it would outline a plan to ban the government from buying information that would
otherwise require a court order or a warrant. And I think we've really reached the point where you have
so much data floating around, and you all have been very interested in this, that governments can
essentially buy their way around the Fourth Amendment. And so the point of this bill is to basically
build on my earlier legislation, the Mind Your Own Business Act, and be very specific about
making sure that you just don't have this back door to throw in the Fourth Amendment in the
trash can. They'll be introduced shortly, and we've seen all about these shady data brokers
selling information about Americans to the government. I will tell you, I'm on the Intelligence
Committee. I'm not going to get into any unclassified. I think what you've read about and heard
about is just the tip of the iceberg. And I don't think Americans' constitutional rights ought to vanish
when the government uses a credit card instead of a court order. I mean, surveillance, folks, is
surveillance. And what I want to do is close this loophole. And my view is that the combination of
this law and the Mind Your Own Business Act, which I think will force Mark Zuckerberg and the other tech
CEOs to take privacy seriously because there would be personal consequences. This is how you go about,
in my view, these two bills preventing future privacy disasters. This ought to be the foundation of it.
What you're describing here is I'm a phone case manufacturer. I want to buy some targeted ads.
I can go to a data broker. I can buy information about people's locations. There's search histories
on the open market. You want to prevent the government from participating in those marketplaces.
You got it. I want the. I want the.
government barred from essentially buying their way around the Fourth Amendment. We've all been
reading. You all have done this, Wall Street Journal. I mean, everybody who's got reporters
investigating these shady data brokers is picking up the same thing. And I will tell you,
unless we have a law that has some teeth in it, these data brokers are going to get away with
it indefinitely. And as you know, a number of the purchasers have already broken their
pledges to me. We can make available to verge all these letters with, you know, high-sounding,
you know, rhetoric about how they were going to protect the consumer. And I think we're learning
that most of those pledges aren't worth the paper they're written on. And the Federal Trade
Commission doesn't have the power or the resources to stop these companies from misusing American
data. And even when the FPC investigated Facebook originally, it let them off.
with a fine that was basically like a mosquito bite for a company that size.
So what do you say with some teeth?
You're talking about law enforcement, needing to respect the Fourth Amendment before it goes
and buys data.
But it sounds like you're also talking about regulating the data brokers directly.
How does that break down?
What we're doing, and we will have this bill for people's review quickly.
So I'm just giving you the top line.
And this is going to try to ensure that unless you have a court order or a warrant, you can't be out there, you know, buy an information.
And we will outline the specific kinds of steps here shortly. But the point of it is to go the next step beyond the mind your own business act. That's what is different about this bill than any other.
I want to talk about 230 and I want to spend the bulk of our time in 230. I look forward.
to reading that bill. It sounds like a good idea, but I look forward to reading it.
230, there is a lot going on. There's the PACT Act. There is the Earn It Act. And then there is just what I would
describe is chaos at the FCC. The NTIA filed a petition to the FCC based on the president's executive
order saying figure out a way to regulate social networks and potentially take away the protections of
230. You wrote
230. I'm very interested in your view of that
petition. And then
yesterday, President Trump
blocked the renomination of Chairman
O'Reilly, who is a conservative,
who is a Republican, because
he seems very uncomfortable
with the notion
of the FCC regulating social networks.
And what he specifically said
is, I shudder to think of a day
in which the fairness doctrine can be reincarnated
for the internet. And that immediately
led to him not being renominated for another term,
the president. Let's start with the FCC. What do you think of this petition to have the FCC
figure out a way to generate some authority to regulate Facebook and Twitter and Google?
Well, you know, you're really talking, I think, about the executive order, right? Yes.
Okay. So this is a deeply flawed idea. And it's something I feel very strongly about
because it is essentially built on the idea that Twitter should be forced to publish Donald Trump's lies,
which take place practically every day about vote by mail. And I don't know if you all know,
I'm the nation's first mail-in United States senator. I was the first senator elected exclusively by mail.
ever since 2002, I have been introducing bills to take vote by mail national.
They were usually pretty dry debates because political scientists would debate them in tweed jackets and all that kind of stuff.
And now it's a question of public health.
Most of the poll workers are over 60.
So that's what this is really all about is, you know, Donald Trump.
even though he votes comfortably by mail from his home in Florida, he don't want anybody else to do it,
but he wants to force Twitter to publish his lies. I will tell you, I think beyond the fact that this is a colossal
constitutional mess, I don't think even Donald Trump believes he's going to be able to get away with this.
what he's doing? And I went to school on a basketball scholarship. I was dreaming of playing in the
NBA, pretty ridiculous idea because I was too small and I made up for it by being really slow
at 6'4. And I will tell you, what Donald Trump is doing is basically working the refs. That's what he's
really doing. He is working the refs. He's trying to bully the tech companies in order to get
better treatment. And by the way, any serious effort to change 230 has got to run into these
Republican fantasies where platforms should actually do less moderation and allow more misinformation
about things like vote by mail and COVID and the like. So I don't see this as happening.
but, you know, Donald Trump sure wants to bully the tech companies.
He wants to force platforms to print his lies.
And people like me, particularly when he's lying day after day after day about the safest way for people to vote this fall, we're going to push back.
Mechanically here, Trump issues the executive order.
The executive order, the only concrete thing it asked for was for the commerce,
Department to petition the FCC to look into resolving what it called contradictions between sections
of 230 and to look into a way to petition the FCC to take control basically of our social
networks, to regulate them the way they regulate broadcast. Have you read the petition? Have you,
have you? No, I mean, yes. And the fact is this is going to be a lawyer's full employment program.
There's no question about it. This is a constitutional mess. But virtually,
all of the independent analysts, and many of them are Republicans, say he isn't going to be able to pull this off.
And I'm telling you, my own judgment from having watched sort of the alphabet agencies in Washington, D.C.
And how these things, you know, play out is I think Donald Trump knows he isn't going to be able to get this.
A. B, it is just completely wrong. And C, it is going to be going to.
to bleed into these other issues, which Senors Hawley and Cruz and others are talking about that
I think also don't resemble reality. They're always blaming. And yesterday we heard again about
how conservatives didn't get a fair shake on social media. There have been all kinds of
analyses that indicate that's not true. That usually bleeds into the Cruz argument that what I
did was write a law that called for neutrality. You hear always about that. There isn't anything about
neutrality in what Chris Cox and I wrote. Nothing. You could have conservative websites. People could pay
attention to that. You could have liberal websites. And the marketplace would reflect what people's
preferences were, which is what we intended. And can I just give you my kind of one sentence take on all these bills?
because we got earn it and we got the PAC bill and all the rest.
What Chris Cox and I tried to do in Section 230, and I think it's still valid today,
is we wanted to empower free speech and moderation.
These other ideas have one thing in common.
They would restrict free speech in order to,
force moderation. That is the difference, in my view, between what we sought to do with 230
and all of these bills. And, you know, if we really want to put everybody to sleep and Verge is known
for not doing it, we can dissect the difference between the Earned Act and the PAC bill. And,
you know, there are all kinds of other ones floating around. But that is the core.
difference is what we did in 230.
We wanted to empower free speech and moderation.
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I had one question about the Pact Act, which was specifically in the hearing last week,
Chris Cox had said that he thought it was relatively reasonable for, say, websites to have to take down content that a court had deemed illegal.
He had called it, said if it was a well-crafted statute and there was a clear standard, it is exactly the way Section 230 should work in spirit.
What do you think of that?
Well, I mean, a couple things.
First, let me tell you about the PACT Act.
The PACT Act really doesn't know what problem is supposed to solve.
It makes a lot of rules about a lot of different aspects of content moderation.
and even if it was written in a more straightforward way,
I don't know how it would create a better balance of taking down slime
while I'm still allowing for vibrant free speech.
The other part of this is I think that Pact would effectively lock in Facebook
as the dominant player in the marketplace
and make it difficult for new challenges.
to emerge. And the reason I say that is look at all those regs around, you know, moderation.
Yeah, it's going to be very hard for somebody to break in, take on Facebook with all those rules.
Now, on the idea that companies should be able to be forced to take down content that a court has
ruled as illegal. Now, there may be some narrow way to address outlier, you know, cases.
But that's not what people are talking about here.
I've got two concerns.
First, my concern is that sites could be flooded with fake court orders, which researchers have already documented.
Second, my concern is that this kind of provision could be a mechanism for affluent and special interest to silence criticism.
And that's been seen in Europe and defamation cases in America.
So, having said that, let's see if somebody can come up with some narrow provision that addresses outlier cases, but we shouldn't make any mistake about it.
That's not what politicians are complaining about here.
That's not what the far right politicians are complaining about.
So when I look at the broad spectrum of 230 reform proposals and then what is happening with users on the ground, one thing our colleague Casey Newton reminds us of all the time, the number one,
complaint users of Facebook have about Facebook is that too much content is taken down. By far,
that is their number one complaint. We live in a world where we just had an antitrust hearing.
You're afraid that additional regulation around content moderation will cement Facebook.
Is there a way to solve this that isn't 230 reform, but is actually competition reform,
so that users who are unhappy with Facebook go somewhere else? Well, I will tell you again that I
think that 230 strikes the best balance with respect to, you know, this issue. And, you know,
my sense is that 230 now gets blamed for practically everything. I mean, it's kind of like
if somebody gets a sprained ankle, it's, you know, fault. If you don't like something that comes
up on Facebook, it just goes on and on. But the reality is that this has still, you know,
really addressed a lot of the issues that I felt most strongly about, which is helping the little
guy and the people without power and clout. I mean, think about Black Lives Matter and think
about the Me Too movement. Black Lives Matter, all those things being posted to social media
platforms. With the Me Too movement had a chance to take on powerful men without two things.
30, a lot of people I talk to, you know, doubt it. So I think we ought to deal with the kind of
core kinds of questions. And, you know, for example, to me, the central question from the
antitrust hearing. And by the way, I've been working night and day on the unemployment issue.
I wrote the provision that it called for the $600 per month extra benefit as the ranking
Democrat on the Finance Committee. So I've been kind of working around the clock on. I didn't see
the hearings. But the central question on antitrust is how do you promote more competition?
Because, I mean, look at Facebook. I mean, the classic case was anybody who challenges them and the other
big guys, they just go out and buy them. Now, my kids always joke with me that, you know, I think I know something about tech.
But the fact is, we know what happened with Facebook.
Facebook saw younger users migrating to Instagram, period, full stop.
They go out and buy, you know, Instagram.
And that's basically what happens.
So to me, for people that are concerned about what's going on in platforms, let's unleash
more competition.
I think that will be good for markets.
I think it'll be good for consumers.
And by the way, being the ranking Democrat on the finance,
committee, I can tell you that there are a host of other areas where we need that same kind
of principles, starting with consolidation and telecom and pharmaceuticals.
For telecom companies to tie content to the broadband services, to their broadband services,
to me, looks inappropriate on its face.
I mean, just to go back to part of the PACT Act that doesn't have to do with taking down
content explicitly is that there are transparency rules.
that companies would have to publish more of their moderation guidelines. What do you think about that
provision? And do you think there's a way that you would be able to enforce that if it's a good
idea without changing 230? Well, the PAC Act, as I said, I'm not sure that we know what problem
it is supposed to solve. And for example, I'm still concerned about where encryption stands
and all of these, you know, different bills. And I'll just put it out this way. I mean, I told you my
general thought about these bills. For me, the two-part test of somebody who wants to make significant
reform in 230 is, one, are you protecting speech? And two, are you promoting moderation? And I don't
think you can do that. And so much of what is out there today about 230 is just fair.
factually wrong. And by the way, hats off the verge for getting a lot of accurate reporting about
230 out there. But if you'll recall the New York Times, that's actually published a correction.
For God's sakes, the New York Times was getting 230 and the First Amendment conflated and then publish a
correction. For a while, we definitely thought the story was how often people were getting it wrong and
that was too meta. I mean, speaking of that, do you think at this point there is any way to
to extricate any good faith debate and discussion of Section 230 from all of the misinformation
and sort of bad faith discussion of it?
Well, I'm a glass half full guy. I mean, that's what my wife always says is, you know,
she says he brings us Mr. Rogers' approach to government. You know, he comes on in and, you know,
talks about, you know, what's good. Sure. I mean, hope springs eternal. But the test is,
what does it do for speech and what does it do for moderation? And I don't think these bills yet have
hit that. And I would like to mention one other thing because a lot of people say, well,
you know, Ron's doing all this tech stuff. That helps the big guys. That has never been
the moving force behind my views. My views have always been about the little guy, you know,
the person in their garage, somebody, you know, dreaming big. That was what, you know, move me to do
230. And I thought 2.30 would be helpful when it came up. And Chris Cox, by the way, is such a thoughtful
thinker. And he dissected the prodigy case and all this kind of thing. When we were having lunch together
as young Congress, you know, people, I finally said, Chris, I don't know everything about the internet.
And I haven't dissected prodigy the way you've done. But why in the world would anybody put a
nickel into this new stuff online if they thought they were going to be held, you know,
personally liable for everything that was posted because guess what? Everybody tells us there
are going to be a lot of posting. So that has always been what I've been talking about. And the one
thing I think everybody should be worried about is what happened with Susta Fasta. Susta Fasta was,
oh, we're going to fix the internet. We are going to stop all this human trafficking. It's terrible.
Well, guess what? Drove a lot of it to the dark web. We've seen additional problems in a variety of
jurisdictions that I don't know whether you've reported on it, but others have reported on it.
And if you want to now deal with children, as I do, put real resources into prosecutors and support my bill that does that.
So we're running out of time. I want to come back to the FCC issue here.
There is the spate of bills in Congress. There is the bad faith conservative argument about bias on platforms. That's one lane of activity. The other lane that we are seeing is the president blocking the nomination of a Republican FCC commissioner who expressed First Amendment-based hesitation around the FCC regulating social networks. Your senator, you'll be involved in nominating his replacement or confirming his replacement if one is nominated.
Do you think that the president's handling the FCC right now is appropriate?
And as a senator, what steps will you take if somebody else is nominated?
I think his handling of it is a disaster.
And one nomination after another is brought up.
And the litmus test is, will the nominee do exactly what the president of the United States
wants to do on any given issue at any particular moment?
I mean, these nominees are basically handing over any sense of independence.
So my guess is that the president will insist on somebody who's going to push the policy
that Twitter should have to publish his lies and somehow twist and turn the FCC into a forum
that unravels Section 230 and basically kind of forfeit.
any sense of independence. And I've got a track record of fighting that kind of nominee and we'll
certainly have tough questions to ask in any kind of confirmation process. And I've got to think
that a nominee, the Federal Communications Commission from the Trump administration, is somebody
who basically is prepared to carry out every dotted eye and every cross-key of the president's anti-230
policy, which, as I've indicated, I think the bottom line, and I've studied it carefully
because of the implications for vote by mail, is basically about working the refs, bullying the
tech and companies and forcing Twitter and platforms to print his lies.
It seems like Chairman Pye is very hesitant about this.
We've seen a notable shift in tone from Commissioner Carr.
Are you tracking what is happening at the FCC?
Because if Trump wins again, Carr will likely become the chairman.
And he is just, I would say the shift in tone is very notable where he wants to regulate
Twitter and Facebook.
Thank you very much, Verge, for giving me another argument to take out to the grassroots
for why we can't let him win the.
election because I think we know what will happen. And you've outlined it is he will go to these
regulatory agencies. He is going to force them to in effect subscribe to his litmus test on these issues.
And by the way, it's a pretty hard job for a nominee because if the president talks to a nominee
on Thursday and sees something on Fox and Friends on Friday morning, then he may just demand the whole
thing be redone and the nominee has to go along with what the president saw on Fox News Friday morning.
Just as you mentioned, there's this huge spread of Section 230 bills and the White House and the FCC.
Where do you see all this going next? Well, I mean, the president, we're down to 90-some days for purposes of the
elections. So it is hard to see a 230 overhaul running the gauntlet.
in the United States Senate because hopefully we will soon renew the legislation that I authored,
making it possible for people to get the $600 per week and make rent and pay groceries
and build on that. Senator Schumer and I have tried to do. And then we'll be back for a short
session in September, which is traditional in an election year. So it's hard to see it running the
gauntlet. But I don't think anybody should be mistaken about the consequences, and your colleague just
talked about it in terms of the FCC in the election. And I think that you have Senator Graham and
Senator Blumenthal with Ernst, which I think is still a backdoor effort to gut encryption,
and still raises, despite the good work of Senator Leahy, my friend and colleague raises questions
about whether states could, you know, could do that. You have the PACT Act. I think we've
kind of pounded away a little bit on the implications there. You have the Federal Communications,
you know, commission. But all of it really takes you down, you know, one, one path is that, you know,
the president wants to basically take this concept known as Twitter. And he wants to, you know,
wants to twist it and turn it to his advantage. That's what he did in the 2016 election,
and now he doesn't like what has evolved online, and he wants to twist it and turn it to his
advantage. And the reason that I wanted to discuss the ramifications here is that I and others
are going to push very hard against these approaches that I think would gut the whole role
of the First Amendment as the bulwark for the little guy, for the little guy, the person who doesn't
have power, doesn't have cloud, doesn't have political action committees. Those were the people I cared
about in the first place. And by the way, and I can wrap with this, people really don't know
that Facebook signed off on Sesta Fasta. Facebook basically got to its dominant position and decided,
well, we'll pull up the drawbridge on the challengers.
So a lot of the people who are opposing Section 230 are people who have made it.
They used 230 when they were small and entrepreneurial and innovative and wanted to put money
into innovation rather than litigation.
Now they've made it and they're trying to as sort of incumbents and legacy industries
push everybody aside and the example of Sesta Fost.
I mean, so much nonsense talked about on Sesta Fosta that you needed it to stop trafficking,
for example.
Backpage got busted under current law.
It didn't get busted under Sesta Fostas.
So I appreciate, Virge, giving me a chance to inject a little bit of facts into the 230 discussion.
And if you hear online that somebody sprained their ankle and it's two,
230's fault, you'll have a chance to hear the alternative story that we've been talking about.
Senator Wyden, thank you for the time.
I feel like I could do an entire other hour with you just talking about telecom.
Telecom zoning content, so we'll have to schedule that up.
Let's do it again.
All right, my thanks to Senator Ron Wyden for joining us.
We'll have coverage of all his remarks and his upcoming privacy bill on Theverge.com.
You can check that out.
Thanks also to Addie Robertson, who at this point, I think, knows more about 230 than any reporter going.
So I was very happy to have her there.
We'll be back on Friday with the chat.
show. We got another string of guests coming up on the interview show on Tuesdays. We'll talk to you
soon.
