Orrin Hatch, Who Once Wanted To Destroy The Computers Of Anyone Who Infringed On Copyrights, Now Lies About Section 230

Legal Issues

from the sit,-fido,-sit dept

Former Senator Orrin Hatch was so anti-technology, and supportive of the anti-technology recording industry, that former music tech startup entrepreneur and sci-fi author Rob Reid referred to him as “Senator Fido” in his comic novel about the music industry, because Senator “Fido” Hatch was such a lapdog of the recording industry that he would be willing to slip whatever anti-tech language they wanted into any new regulation. Even outside of the world of fiction, Hatch was way out there in his anti-technology ideas. In 2003, when he was Chair of the powerful Judiciary Committee, he floated the idea that copyright holders should invest in malware that would literally destroy the computers of anyone who opened an unauthorized file. The suggestion was so crazy that when an exec for an anti-piracy company at the hearing where Hatch raised this idea pushed back saying “no one is interested in destroying anyone’s computer,” Hatch immediately corrected him and said that, yes, indeed, Hatch himself was very interested in that idea:

“I’m interested,” Hatch interrupted. He said damaging someone’s computer “may be the only way you can teach somebody about copyrights.”

So, I always tend to take it with a grain of salt whenever Hatch, who thankfully retired a few years ago, decides to weigh in on issues regarding technology and the internet. His latest is a piece in Newsweek in which he attacks Section 230 by flat out lying about what it’s about. Hatch either knows he’s lying or is losing touch with reality. Berin Szoka posted a long thread on Twitter detailing basically all of the court rulings that Hatch — again, the former head of the Senate Judiciary Committee — would have had to forget or ignore to make the arguments he makes (and notes that at the time of most of those rulings, they were cheered on by conservatives like Hatch).

The crux of the argument is not the argument of the old Republican Party, but rather the new one. The one that argues that the government can force websites to host speech they don’t want to be associated with. Instead, Hatch ignores the long history of state action doctrine, and pretends that we can magically declare internet companies part of the state, bound by the 1st Amendment:

History has proven the First Amendment to be the most effective standard for setting the boundaries of protected speech. The First Amendment fosters robust discussion and a diversity of viewpoints while permitting restrictions on a handful of limited, carefully defined categories of harmful speech, such as fraud, defamation, child pornography and incitement to violence. What it doesn’t permit are prohibitions on conservative viewpoints, negative news stories about President Biden’s family or opinions that tech oligarchs might not like. And that’s exactly why it should be the standard for social media companies providing a forum for public discourse and the companies owning the servers that host such forums.

If these companies want to base their business models on providing digital access to the public square, then they should have to abide by the well-established standards regulating free speech in the public square. Insofar as they conform to First Amendment standards in their terms of service, these companies should continue to enjoy immunity from civil liability under a revised section 230. But if they want to go beyond the First Amendment and prohibit forms of speech protected by the First Amendment, they should be liable just like any publisher who engages in content moderation (which is really content discrimination).

Of course, nearly everything Hatch says here is wrong — and would actually violate the 1st Amendment rights of those companies by compelling them to host speech they disagree with. As has been stated repeatedly, it’s also bullshit that any social media site has “prohibitions on conservative viewpoints”. The blocks on the Hunter Biden story were not because they were “conservative viewpoints,” but because of very real initial concerns that the reports were from an untrusted source and may have been hacked.

But, really, it strikes me as fairly stunning that a Senator who regularly, vehemently pushed for censorship on the internet for any site that even slightly might have possibly infringed on someone’s copyright is now advocating that no website can do any content moderation ever.

Even more insane? Seeing a Republican Senator basically calling for the nationalization of Google and Amazon:

To guard against economic censorship, policymakers might also consider classifying firms like Google or Amazon as “public accommodations.” These sorts of enterprises, which include hotels and restaurants, are required by law to provide their services to people of all backgrounds, with limited exceptions. Or the Big Tech companies could be treated as “common carriers” akin to phone companies or railroads, which are required to provide their services to all customers willing to pay a fee. It would be unthinkable today to turn off someone’s water or electricity, or deny someone passage on a boat or airplane, because of that person’s political beliefs. It should be just as unthinkable to turn off that person’s access to basic web services?but sadly, our laws don’t yet provide this kind of protection. Congress must put in place such protections now to prevent the establishment of a new digital hierarchy that places conservative viewpoints at the bottom of the social pyramid.

The thing is, you don’t get to just declare something a common carrier. And the comparison to water or electricity is inapt. Those are commodities where there is only one service provider in a particular area. That is not true of Google or Amazon or Facebook. They are all differentiated services.

And, of course, this entire piece is based on a flat out myth that conservative voices are somehow being silenced. Unless Hatch is saying that “conservative viewpoints” are the equivalent of Nazi viewpoints, then this argument makes no sense.

Hatch was one of the worst Senators on these issues when he was in the Senate, and it’s no surprise that he’s just as bad out of the Senate. But at least Fido has no more power to do any damage.

Filed Under: 1st amendment, copyright, fido, orrin hatch, section 230