On March 25, 2021, chief executive officers (CEOs) from internet giants, including Facebook’s Mark Zuckerberg, Google’s Sundar Pichai, and Twitter’s Jack Dorsey, testified before the House Committee on Energy and Commerce on the rise of extremism and misinformation plaguing their online platforms.
Although the impetus for this hearing is the lack of action taken by these companies to stem the tide of misinformation and disinformation that have spread across their platforms over the last six months, this is part of a longstanding and much larger debate around holding social media and online platforms accountable for content published on their sites. Since 1996, online intermediaries have enjoyed far-reaching protections from civil liability by way of Section 230 of the Communications Decency Act, which establishes 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.” While Section 230 allows the Department of Justice to charge intermediaries for knowingly violating laws relating to copyright, sex trafficking, and federal crimes, in practice, internet intermediaries are generally not held liable for content posted on their sites by users. Furthermore, under Section 230, internet platforms are also allowed to choose what content they restrict and how they do so without being held liable for what they leave up or take down.
While many social media platforms prohibit the sale of drugs on their pages, the lack of liability has created a culture where these companies are not compelled to take proactive steps to ensure dangerous drugs do not find their way into the hands of consumers or to assist law enforcement when a violation of this policy occurs. Certain features, like the one found on Instagram and Snapchat that triggers messages and images to disappear after 24 hours, have become particularly effective tools for sellers of counterfeit products by erasing evidence that would otherwise enable law enforcement to build a case. Furthermore, the minimal steps many of these platforms take to verify the identity of their billions of users create a safe haven for illegal drug sales. Even when a bad actor is identified and shut down, the same user can create a different profile and continue their business.
In one example from earlier this year, despite a zero-tolerance policy for the purchase and sale of illegal drugs on Snapchat, Laura Berman lost her 16-year-old son after he was sold a prescription drug laced with fentanyl on the social media application. When Berman showed police the drug dealer’s Snapchat and Twitter handles they told her, in part, “we don’t even bother to call the social media companies anymore because they use the privacy and free speech laws to not give us any identifying information . . . The only thing they’ll do is take the profile down and then the dealer will just pop up two seconds later within a completely different profile name.” What is worse is that certain algorithms and features of these social media platforms may increase the visibility of posts with illegal content. For example, Instagram algorithms enhance their users’ searches, so if an individual has looked for drugs on the app, the app will deliver more drug-related ads, pages, and hashtags into a user’s feed even when they are not actively searching.
And this trend is not limited to social media sites. In 2018, in cooperation with the Food and Drug Administration (FDA), Google agreed to deindex domain names listed in FDA warning letters, which identified incorrect claims being made about a product, such as scams or counterfeit products. However, a 2019 review conducted by the Alliance for Safe Online Pharmacies found that Google had taken action on only 63% of sites listed within FDA’s warning letters, leaving roughly hundreds of websites already flagged by FDA still accessible to consumers via Google search. Many sites cited in FDA warning letters for selling dangerous drugs like tramadol, abortion drugs, cancer medications, and other painkillers can still be found via Google searches today.
As more and more American consumers turn to the internet for health care decisions and prescription medications, it is imperative that these platforms are held accountable for the illegal online sale of drugs occurring on their sites. Members of Congress from both sides of the aisle have recognized this urgency and are rightfully asking the CEOs of these companies to answer for content published on their platforms. While there is growing bipartisan support for Section 230 reform, there is no consensus on exactly how reform should be accomplished. The March 25 hearing was an opportunity to see how the House Energy and Commerce Committee plans to tackle this complicated and problematic issue.