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These truths to be self-evident, that all men are created as a member of Congress, I get to have a lot of really interesting people and experts on what they're talking about. This is the podcast for insights into the issues. China, bioterrorism, Medicare for all in depth discussions, breaking it down into simple terms. We we hope we hold these truths. We hold these truths with Dan Crenshaw. Welcome back, folks.


Let's talk about the Internet because it affects you. You're using it right now to download this podcast and you probably are using it to give it five stars. If you haven't given it five stars. I don't know what you're doing with your life. It's like one hundred thousand of you download these podcasts every time. But we only have like ten thousand five star reviews. So I'm not sure what's going on. That means nine out of ten of you are not doing what I asked you to do.


Really appreciate it. When you do give it five stars.


We're talking about the Internet because it's important and because with a new administration that seems hellbent on over regulating the Internet and telling you that it needs to be more free with net neutrality, what a nice word. Net neutrality. We're going to base we're going to based Internet regulations upon laws passed in 1934. Apparently, if you are a long time, listen to this podcast.


You know that we had AGP on here like a year ago to talk about that, but it's good to bring it up again.


We also want to talk about Section two, 230 and rural broadband, because that's always a big point, political point that's always being talked about. But what the hell does it mean and how do we get there? Seems like a great idea.


So to help us have that conversation, we will have Commissioner Brendan Carr.


Brendan will be the senior Republican on the commission of the FCC coming up, you know, as as AGP will step down.


And he has years of public and private sector experience in communications and tech policy. He's served as general counsel of the FCC. He's represented the agency in court, served as chief legal adviser to the commission, first joined the FCC as a staffer in 2012, worked on spectrum policy. We're going to try to understand what spectrum policy even is, but it sounds cool. He has litigated cases involving the First Amendment and the Communications Act.


So I think he's going to be a great guy to talk to Section 230 about.


And that's I think that's enough for the bio.


Brendan, thanks so much for being on. So good to join you. Really a big fan of your public service that you've done both here in Congress and in the Navy. And a big fan of the podcast as well. I've given it a five star review, so I hope to live up to that high standard in this episode as well. You are the one out of 10. I appreciate you very much. Read it.


So I want to get to Section 230 at the end.


It also kind of forces people to listen to the whole podcast, because I know that's what they really want to hear about lately, because it's been in the news so much and it's extremely important. But what also is important is how we regulate the Internet just as a whole. OK, you haven't heard the words net neutrality in a while. I, I would like to think that the Democrats let it go, although they did pass a bill out of this House, I think save the Internet Act possibly, hopefully as some kind of virtue signalling, Bill.


But you don't hear about it a lot. I would hope that they've given up on this pipe dream to to overregulate the Internet. What are your thoughts on that?


I would hope so as well. I mean, particularly you look back at the last nine months with, you know, covid-19 hitting this country virtually overnight. So much of our lives shifted onto the Internet, educating our kids, working remotely, accessing telehealth. So it was a massive stress test of our entire approach to regulating the Internet. And what happened, the US Internet infrastructure held up under that massive increase in traffic, far better than a lot of our counterparts in other countries that have approaches to the Internet that look a lot more like Title two, that look a lot more like heavy handed Internet regulations.


If you remember, as you noted a couple of years ago, when we quote unquote repealed net neutrality, the talking points out of D.C. were unbelievable. Right at the end of the Internet, you're going to start to see tweets one word at a time. In the exact opposite happened. Internet speeds have doubled in this country since we repealed to we're seeing investment by ISPs, Internet providers that are 70 percent more than their counterparts in Europe and more miles of high speed fiber get plowed into the ground to connect Americans last year than ever before.


The digital divide is closing, so we are absolutely heading in the right direction. We're not mission accomplished yet. There's still too many Americans that don't have access to Internet. But reversing that heavy handed government regulation of the Internet was one of the reasons why we were able to withstand that surge in covid traffic and keep people online during this pandemic and that plowing the ground for fiber optic cable.


That is what will create 5G in this country. Right. That that's the whole reason they're doing it. And you're saying that investment probably wouldn't be occurring without if these net neutrality regulations under the Obama administration were still in place?


Yeah, the Obama approach resulted in a decrease in investment capital flow to Mexico and other countries. Internet providers pulled back on their bills, so if we had not reversed that back in the end of 2017, we would've been in worse shape when this pandemic hit. But to your point, you know, the messaging gets far beyond the facts here. And my view is we are going to quickly see a return to efforts to push back to Title two at the FCC where I work.


You know, everyone's very focused in D.C. right now in the balance of power in Congress and whether Republicans retain control of the Senate as a check on some progressive ideas. What they lose track of is a lot of the stuff we run directly through administrative agencies. But it really is interesting. You give the far left from credit for branding. You know, there was a poll, I think, that said 80 percent of people support net neutrality and a good such a good term.


Who who the heck are those 20 percent, you know? Yeah, but when you peel back, it's really just socialism in sheep's clothing. It's about price controls is about more heavily regulating. But it's amazing. When we went through this in twenty seventeen, there are such extreme claims. I remember, you know, when one set of people were saying that, you know, if we reverse net neutrality, people like Justin Bieber never would have been discovered on the Internet because he would upload his videos to YouTube and that's how he was discovered.


Well, one is a threshold that I'm not sure that that's a bad consequence if it's something like that hadn't happened.


But of course, the reality is that example is faster, better, more resilient today without that approach, which is the same thing of green new deal. Right. Greens, a great color. New is a good thing. I like getting deals, but you put those two together and behind it is pretty dangerous policies. Yeah. And so and so actually I think we should probably just back up a second and give in layman's terms what the heck net neutrality is, because I'm not sure if you ask people, you know, you could ask people if they're in favor of it or against it, but I bet they can't explain what it is.


Yeah, it's really two things that are intentionally conflated. One are basic rules of the road. Don't block, don't throttle without disclosing what you're doing. Don't discriminate against content. That's actually a lot of bipartisan consensus. And if Congress wanted to get together and say, here's three or four basic neutrality rules, let's pass them, it should go, in my view, unanimous and bipartisan. The challenge of the FCC is that we had to reclassify the Internet under this 1934 title to regulation.


And so there's two issues. The basic rules of the road, which are fine, no real controversy, but then it's how do you get there? And it's exerting massive new authorities over the Internet. And when you heavily regulated industry, as you know, it moves it towards scarcity. The entire idea of Title two is to heavily regulate a few entities and to dictate what they can do rather than relying on competition. So people need to separate the rules from the massive regulatory overreach.


Right. So just to be clear, what net neutrality does conceptually is moves the Internet under a regulation that that was for telecommunications from 1934. That's what you mean by title to. OK, just I just want to be clear on what that means. You're you're basically regulating the Internet as if it's.


As if its phone lines I mean, even that might be the wrong analogy, like, you know, and so and so I guess what what does that what does that mean in practice? Yeah.


So the idea back in the 1930s was we granted monopolies and you were free to serve this community. You had no competition. And so to make sure that you serve the public interest, the federal government heavily regulated you. Here's the prices you can charge. Here's where you have to build your networks.


It was micromanaging big companies because we couldn't rely on competition. And so when you bring that into the Internet era, it makes no sense. What do people want? They want choice. They want competition. And so if you go back to an approach designed for monopolies, you were going to move the market in a monopoly. AT&T, they can probably survive a title to approach. They've got thousands and thousands of lawyers. It's not great for their business model, but it's the smaller mom and pop providers that you've never heard of, the listeners have never heard of that are actually connecting these rural communities.


They can't handle the onslaught of title to regulation.


So what do you think the Bush administration would do? This is the top of their wish list. Look, I think despite the fact that so many people in the far left oversold the apocalyptic results that would come from a repeal of net neutrality, they are going to go right back to it. It's not something that I support. You know, the FCC, we're going to be two to two Republicans, two Democrats. So I don't see a path forward for them to return at the FCC to title to.


But they're going to other things. So government run broadband networks, for some reason, the far left is enamored with this idea that we should let states or local governments or cities own and run their own Internet service is in competition with the private sector.


And it's kind of like the public option. Exactly. Yeah. It's you know, local government are great for a lot of things. But I've met with them, including in North Carolina that invested a lot of taxpayer dollars in building on a network and they didn't know how to run it, so they only had to lease it or sell it. In the main, these government run broadband projects end up costing taxpayers a lot of money and not delivering on the promise results.


Well, I don't even understand the premise of that is it just is the is the idealism that they're perpetuating, like what you do. We just want to provide Internet for free to people who can't get it.


So we'll just have the government actually run in an Internet company. Is that essentially.


That's right. Except it wouldn't be it wouldn't be free. People pay for both with sort of the the taxpayer dollars on the front end and they charge, you know, end user consumers as well. The theory I sort of understand, which is there are still pockets of this country to many that don't have Internet service. And so the government says, I want this service for my people, so I'm going to just deliver it myself because the private sector isn't doing it.


But again, a handful of relative success stories by some measures. But the vast majority of these cases just go south and that makes it harder to get private sector investment in there when they're competing with, you know, a government actor. Yeah, yeah.


I mean, because the government actor can deliberately undercut the private investment and then screw it all up. And then we're left with a a worst a worse situation. So, OK, so what's a better way then? Especially because I think I think this conversation really comes up with something like we want people to have access to rural broadband. Now, that's really difficult to do because, you know, you've got five people per square mile. And so the investment incentive just isn't there.


You've got to build out infrastructure all the way out into the countryside. That's a lot of infrastructure to build for just a few people. You know, cell towers only have a certain amount of, you know, radius of coverage.


So you can start to see why this doesn't just happen on its own. That being said, we all have an interest in making it happen. So what would be the best way to do that?


To your point, it can cost anywhere from 30 to 50 thousand dollars to run a mile of fibre. And when you talk about population densities of one to three person per square mile, you can very quickly see that the economics there are just not going to pan out. So we have at the FCC is something called the Universal Service Fund. It's a ten billion dollar a year fund and we've been reorienting it to support build outs in rural in other sparsely populated parts of the country.


And we use a reverse auction. Basically, we say we think it could cost just to set a number a million dollars to serve these X number of households in this community. And we let the private sector bid down. So one provider, so I'll do it for nine hundred thousand other will say, well, I'll do it for 800000. So now we've created competition for federal dollars to then deliver high speed services. And that approach is working. The digital divide is closed about thirty percent in this country.


But we also need to rely on a mix of different technologies. Fibre is great and has a lot of advantages, but we're also looking to this new generation of low Earth orbit satellites that Space X Starlink is putting up. That's exciting stuff that's looking at, you know, 5G fixed wireless so that you can now get wirelessly the same quality of Internet experience that before you had to have fibre for. So it's good for driving down the costs of closing the gap, but also bringing competition because now a 5G provider can compete with something offering.


Someone offering cable or fiber service. Yeah, and so let's talk about the technology, because people understand this a little bit and I've talked with various Internet companies about this to get a better understanding of it. There's two ways you can get Internet into, let's say, the middle of nowhere, OK? One is you have a really long fiber optic cable that gets out there, attaches to a cell phone tower that that tower has, you know, a limited radius.


I don't know what it is off the top of my head. It also depends on what kind of what kind of frequency you're using if you're using higher frequency than it's good through punching through buildings downtown. But if you use lower frequency waves, then you can go longer distances. But I don't think the speeds are as high. But, you know, this is this is the balance that you're that you're setting. But this is expensive. And even then, you're still getting a fairly small radius.


The other option is you could have a stand alone tower out there that receives a satellite signal. Now, this is this is, I think, where it gets starts to get really interesting. This is what you were talking about with with space X, is that you do think that's more of the solution in the future? And my my follow up question to that will be, what is the government's role? Is is it these grants that you're talking about which seems to be working well to leverage more private sector dollars?


Yeah, you have. Exactly right. Exactly right. And there's going to be a mix of different technologies out there. Fiber is great where it's economical to do. We have these new fixed wireless, as you pointed out, we've got satellite services that are coming online from the FCC perspective. We want to be technology neutral because even though we think today we know what might be best, we're not, you know, in the best position to make those decisions.


We want the market to. So to your point, we create these auctions of federal dollars of federal grants and we let a range of different technologies compete. So we just completed one a couple of weeks ago. Satellite providers won some of the funding. Fiber providers won some of the funding in what we call fixed wireless providers, won some of the funding as well. So it's going to be a mix of technologies because it depends on where you're at.


I mean, it's and that's an important note to make, like because I listed a kind of a few options and it really depends on what region you're in and what's going to work the best.


And one of the chokepoints we have as well is, is jobs. A lot of people, when they think about the Internet and they think about 5G, they think about Silicon Valley and, you know, young kids in hoodies with beats, headphones, coding away in engineering. Those are great jobs that are enabled by these technologies. But these are also construction jobs. So I've tried to lean on community colleges to create a pipeline for this. So if you look at just the tower Clymer's, the guys that come in that climb these towers and install these new antennas, we could add 20000 of them almost overnight.


Yeah, I spent a lot of time. And that's real infrastructure.


That's actually you know, there's not these fake shovel ready projects. It's exactly right. I spent time out of D.C. and I spent time with a lot of these tower crews. I've been up to 3000 foot towers, a couple hundred foot towers with them. You should do it. I'm sure you would get you would get a kick. You could jump off of it. Yeah, basically like the towers.


But those are real jobs. They can start from 60 to 70 thousand dollars. You can go with no skill set, go through a nine to 12 week community college type course and land a job making sixty seventy thousand dollars with a lot of upward mobility from there. So we're looking at ways to incentivize that. We've had some success there, some colleges in South Carolina, North Carolina, South Dakota, but we're looking to expand that opportunity as well.


Yeah, I actually love the idea of that. Let's get up on a 2000, 2000 foot tower. We to be good content and just raise awareness for hey, great. It's a great career field. Little scary, but, you know, so I want to slightly shift what is the difference between our ability to quickly build out that infrastructure and the Chinese ability. Right. Because we're effectively competing with Whiteway here, you know, bringing it back to the 40000 foot level.


We're pressuring our allies, especially in Europe, to not use Huawei. But, of course, they throw up their hands and say, well, who are we supposed to use if we want 5G networks?


So so what is what is the situation there?


Yeah, so I think particularly with covid-19 so many Americans have waking up to the threat posed by communist China, this is not an issue anymore. You need to page through the dusty pages of foreign policy magazines. People are seeing for themselves the harm that is imposed by communist China. And they have a very different approach. You know, they have a top down centralized approach for 5G. And while way it's part of their belt and road initiative. I've been in, you know, rural Uganda many, many miles outside of a big city.


And you've got Whiteway banners everywhere. I mean, they are looking to get this gear out there. And it's a very different approach than the U.S. Obviously, we rely on market forces. We rely on competition. We rely on private sector builds. We don't have a state champion like China does with Norway. But the threat there is very, very real. And I'll give you one story to help illustrated. I was in. Great Falls, Montana, right across the very northern part of the state and I was at Malmstrom Air Force Base and I got to spend time there with Colonel Jennifer Reeves.


She is in charge of 150 intercontinental ballistic missiles and they are spread out in underground silos all across northern Montana. And it's set the scene. I mean, this is nothing but wheatfields. You know, very few cities, big sky country, but dotted throughout that missile field are cell phone towers running on Huawei gear. And a lot of these cell phone towers are pretty sophisticated. You can have high powered cameras on there. You have a lot of different ways of polling data.


So I think the threat posed by Huawei is twofold.


One, our allies could have insecure networks, and that's why we've been pushing Europe and others to look at options other than Whiteway. And we've actually had some success recently. But we also need to secure our home front. And so we at the FCC have prohibited Whiteway Year from being used in our networks and we're looking at requiring carriers to rip and replace, take any Waldwick year out that's made in it because we really can't treat them as anything short of a threat to our collective security.


Well, that's good news.


I hope that makes people feel better. It should. But, you know, what is it that makes them so competitive? And I've spoken with, say, Verizon, for instance, and they're like, look, the real problem, I'm like, why aren't you guys just laying down fiber optic cable more? And what they know is, well, because, I mean, even with even with current, I would say, you know, your old style cell towers, it takes us six to 12 months to get the permitting to even put up a cell tower so that you can get your coverage with 5G.


You're talking about these sort of like what's called a mini cell towers and not using the right word or phrase, small cells and, you know, local municipalities and their regulatory system just just can't catch up to this. And so we just can't get it done fast enough. Whereas in China, they've basically told their providers, do whatever you want, just lay it all down. We don't care. And not only that, but it's state sponsored. So is, you know, how do we fix that?


Yeah, they don't quite have the same permitting environmental review, historic preservation, red tape that we do here in the US. This was one of the biggest challenges that we've been tackling at the FCC. If you look back to 2015, 2016, China was putting up new small cells. These cell sites you need for 5G as something like 12 times the pace that we were doing at the U.S. And a big reason for that, as you noted, is our our federalism system, which works very well and a lot of ways was slowing down 5G bills.


You had these big cities, New York, San Francisco, San Jose, that were charging exorbitant fees like a million dollars just to talk to them about putting small cells up in the city, which was good for the city. So that was eating capital. It was long time lines of delay in China, as you note, is just a unitary country where they can, say, build 100000 small cells overnight. And it just happens. Now, there's downsides that approach.


They don't understand supply and demand. They don't share market forces. They build small cells in places where nobody is. And they don't even turn the power on to them because they haven't made an economically viable decision. But at the FCC, we tackle this challenge. We cut permitting costs, billions of dollars of permitting costs. We put caps in place on the fees that local governments could charge. We put shock locks on their decision making. And since we put those decisions in place, that's when you've seen a boom in small cells in this country each year since 2016, 2017, we've just seen a tremendous acceleration of small cell build.


And so we're getting 5G out there, not just in New York and San Jose, but places like Sioux Falls, South Dakota, are alive today with 5G. I think that's a much better measure of the progress we're now making.


Yeah, well, it's good to hear, I guess. How can we? But a big part of it is local regulations, too. I mean, so how do we educate local regulators on the benefits of 5G and how to get it out there faster?


What I found as I sort of traveled around the country is the smaller towns and communities got it. They're like, look, we understand the economic upside, the competitive advantage for us, having high speed will roll out the red carpet. We wanted the challenge really, where the biggest cities where they realized that because of population densities, they were a must serve city. And they said, you have to come to San Francisco. So we're going to effectively hold you up and make you pay exorbitant fees to do it.


And so the big cities in some ways, you know, kudos to them. They could get more money out of the private sector, I guess. But we saw the harms in the smaller towns. That's why we acted to address some of the exorbitant fees we were seeing. So I think your smaller local mayors, county commissioners and rural America, they really get it and they welcome this new technology.


That's good. So in your view, looking at the horizon, when do you think America is covered in 5G?


We're in pretty good shape. We have a lot of commitments in place. For instance, we approved this transaction of Sprint and T-Mobile. And when we approve that combination, one of the. Conditions was that they agree to build out five to 99 percent of the US population, so carriers right now are turning on 5G nationwide. In fact, the iPhone, the new iPhone just announced recently includes, you know, 5G capability. I think that's a sign of sort of chicken and egg where Apple has said, yeah, this is sufficiently built out in this country that we are going to include this in our phones.


So a lot of people, including this Christmas season, will be buying new iPhones, will have 5G and they'll get that new experience. But in some ways, 5G on the cell phone is like the least interesting part of 5G. The more exciting thing is, you know, you get that new in home broadband from 5G that can compete with fiber. But there's also this whole new generation of innovations that can be unleashed. And the way I describe it to people is think back on when we were going from 3G to 4G.


So how did you get across town before 4G? You had to, like, call a taxi company or hail a taxi on the street, pay exorbitant rates? Well, with smartphones and 4G, the entire sort of sharing economy was unleashed. Uber, Lyft, it solved the pain point in your life that you wouldn't have known when we were talking about 4G or banking. Right. You'd have to go to a brick and mortar store, stand one of those rope lines, use one of those pens that was always out of ink.


And now you've got Venmo and Square right on your phone. So there are pain points in your life today that you don't even recognize as such, that innovations are going to ride on this 5G platform that are going to come in and address those for you.


And what is 5G like? You know, is it just faster?


I mean, what do we what are we talking about? At its core is a it is a better, faster version of 4G. It can hold a lot more devices on the network. So there's a lot of capabilities that it brings over the 4G network. So take virtual reality, augmented reality. The 4G network simply isn't fast or responsive enough to give you truly immersive, you know, virtual reality. So let's say in the future and we have 5G more ubiquitously, you can be sitting on your couch at home and rather having to go to the grocery store, which is, you know, a challenge today with covid and everything.


You can put some VR goggles on. You can be transported not just to some generic grocery store, but to your home grocery store. Right. I'm like weird and peculiar about my grocery store.


I like to, like, go down the aisle in a particular way. I'm sort of obsessive about that. But when you have these VR goggles on, you can do that. You can sort of walk through your grocery store while you can pick something off the shelf with haptics. You can actually pick up a piece of fruit and see if it's one that you want. Throw it in your in your in your basket. So there's all these interesting things that are going to happen that the private sector is going to innovate on once we make this transition to 5G.


Yeah, and telemedicine is another big one, conducting surgeries remotely. You know, gamers would be very happy. So very, very low latency. Right, with 5G. And you can put a bazillion people on a on a single tower so your phones won't be slowed down just because you're at a soccer stadium or a football stadium or whatever. And that seems like a good thing. OK, let's move on to what everybody's interested in these days.


Section two thirty and what is Section two thirty, you know, and what do we get wrong about it?


What do we get right?


What was it meant to do when it was written? It's the debate over Section two thirty is really been marked by more heat than light. And so I think it's good to take a second to talk about it. This law was passed in the 1990s by Congress. It was in the Prodigy and CompuServe messaging board days. And basically there was a court case that said if you moderate some content on this messaging board, you're going to be held liable for all of the comments posted on your website.


So Congress stepped in and did two things with Section two. Thirty one is pretty uncontroversial and actually a very good thing, which it says if you run a Web site, you aren't liable for the content that other people upload to that website. So if you say something on a website that I own, I'm not liable for what you say. Someone might sue me for your speech. That's fine. The second piece of in fact, those are what we call the the twenty six words that people say of the Internet.


That's not all it two. Or does the second piece of it, it says if you're going to take content down to five, the websites are going to take your speech down. I can do so consistent my First Amendment rights. But what Two Thirty says is you also get the special protections of two thirty if that take down meets these specified criteria. Now, flash forward to today from the 1990s. A couple of things have happened. One, the Prodigy and CompuServe messaging boards are now the largest corporations that history has ever known.


Twitter, Facebook, Google and the type of content moderation they engage in is drastically different than it was back then. Seems to be much more politically motivated content moderation than we saw in the consequences of being kicked off these platforms is vastly different. Back in the 1990s, you know, if you were kicked off prodigy messaging while you're hanging out your mom's basement, it wasn't really a big deal. Now people are building their businesses on these websites. Right?


So I think what we need to do is go back to what I think is the true and. Of Section 230, which is to say, if you don't censor, if you leave speech up, that's great, you get the two thirds protections, but if you're going to take speech down, you need to do it consistent with a higher standard set forth in two or three. The upshot of that, I think, is going to be more speech on the Internet, not less, which I think is a is a great thing.


But again, because the First Amendment can't mandate that Twitter carry any one speech that it doesn't want. So we can always use its First Amendment right to take down speech. It just doesn't always get to do that takedown with the immunity protections that two 30 confers.


OK. So if you if you just abolish Section 230 right now, what would happen? So there's a parade of horribles that some people trot out.


This is if you get rid of two, three entirely, that'll get rid of that first provision, C1, the 26 words and therefore a website might be liable for your speech and therefore they're not going to put your speech up there so it can be less speech or they're going to review it and filter it first. I'm not sure that that's where we'll end up for a variety of reasons. One, even if you got rid of two, 30 to three, doesn't exist in Europe today.


And these websites operate basically the same in Europe as they do in the US.


And I also think, well, they censor a lot more in Europe, right. To some extent. But we talk about Twitter and Facebook. I don't think they have much different policies with respect to those, I would say.


But maybe I'm referring to the governments themselves. Right, right. Exactly. Pretty drastic. The other idea is, even if you were to get rid of two three entirely, it's not clear that we would go back to a world in which websites are necessarily liable for other people. Speech. There's background for of principles of common law, First Amendment protections, the scope of of defamation lawsuit. So it's not clear to me that if you were to get rid of Section two or three entirely, that practically would actually be a much different space than we are right now.


OK, that's interesting. Yeah, because again, some people theorize that, well, without those protections, they would they would have an incentive to just take down everything. You know, I guess the question everybody's asking is, how do we get these platforms which are are designed to are designed to connect people and designed to allow people to to engage in some kind of free speech? You would think that's the entire point of these platforms. It is the entire point of these platforms.


It's not like a news website that allows commentary below articles because it's a totally different purpose for that, which is sort of what Section 230 was written for, because we didn't have social media platforms back then when Section 230 was written. And so now there's platforms that are the entire purpose of which is for people to communicate with each other. And so the goal needs to be to get these companies to operate within the spirit of the First Amendment.


I get that they have no legal obligation to operate within the First Amendment, but because they're so powerful, their censorship does infringe on the First Amendment in ways that government couldn't possibly, which is a which is a very interesting new development in the 21st century that our founders probably could not foresee. And, you know, the question is how to do that. And it seems to me that that a fairly easy solution might be to simply clarify Section 230, what you're liable for, what you're not.


Because right now, what is the language? I'm not sure I have it written down here. S. to 30 C1 grants that have a platform served only as an interactive computer service, i.e. it did not function as a content provider, would not be subjected to publisher liability, quote, No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene.


So these are the words I'm looking for obscene, lewd civicus.


How do you say that stupid word? Lascivious, less obvious, lascivious. I know it when I see it. I know what it means. They all mean the same thing, though. Like, that's the kind of the thing. It's just a bunch of synonyms, filthy, excessively violent, harassing or otherwise objectionable.


This is extremely vague. Right. And this is the problem.


I think if you were to if you were to change this wording, you're a lawyer, right?


So you're just a much better person to have a conversation about this with.


Like but it seems to me as a nonlawyer, although I did take a half credit at the Harvard Law School, just saying that it was a winter it was a winter semester.


If you did change this to reflect the what what the government would view as the First Amendment protections in general, which basically, you know, to put it in layman's terms, do not incentivize violence directly, these kind of things, a certain speech that is not protected. If you were to to narrowly put it to that or at least require that the Internet providers or that these platforms themselves have much more cut designations and standards like you can't say this word.


If you say this word or you take this specific action, we'll take it down. Right. Like if you're clearly human trafficking, we will take it down. If you're clearly calling for violence and these are the words you have to use. If you use this defamatory remark and this is the word, then we'll take it down.


I think we could all live with that. But their standards are so insane and we need to be able to sue them for what they're doing.


And the fact that they're protected from this is driving people absolutely mad.


I think you're exactly right. I think there's exactly right. There's there's a couple there's a couple of steps we need to take care. One is where you started the statute itself using sort of vague terms. I think the FCC has a role to step in and bring clarity to these terms. And I think we can bring more specificity to these terms. We should do that. In fact, the Trump administration filed a petition with us asking us to take that action at the FCC, but that's not enough.


So Section 230 reform, in my view, is necessary but not sufficient. The other thing we need to do is transparency. And that's basically what you said, which is right now it's a total black box. If you send a tweet and it gets taken down, you have no idea whether it was for a legitimate reason and not legitimate reason or what reason. So what we did on the Internet provider side, back in net neutrality, when we reversed neutrality, we kept in place on Internet providers a transparency rule that says, look, if you're going to throttle, let people know if you're going to discriminate.


Let people know. I think we should apply that same type of transparency rule to big tech, to Twitter, to Facebook. Now, does letting a consumer see an algorithm really provide them with information? Probably not. But we can find a way to give meaningful information, because the other argument you made early on was that when these websites started, they held themselves out. Twitter, I think, expressly said they represented the free speech wing of the free speech party.


So when they were growing, when they were amassing market power, they said, come here, you a platform that is open to all ideas. Well, now that they've amassed power in market dominance in many cases, all of a sudden their practices are very different. So I think the Federal Trade Commission has a role to play as well in holding these websites accountable to their to their representations. But this, I think, quickly devolves into a much broader conversation, I think, about the future of the conservative movement.


One reason that we're here and haven't taken action on big tech is there's been a strong, you know, libertarianism thread through the conservative movement. That's kind of where I grew up was the libertarian ideas. So a lot of people in the conservative movement said, look, we can't bring the government to bear to address these challenges because these are large corporations or whatever large corporations want. Who are we to stand in the way? So I think there's a been a fight in the conservative movement whether we even stand up to these big corporations or not.


And I think thankfully, myself and a number of other people and I think the party in general is starting to grapple with the idea that if we stand for something as conservatives, it needs to be against concentrations of power and abusive applications of the power. First and foremost, that comes from the government, clearly. But I think a lot of Republicans were slow to see the threat posed by large corporations to individual liberty. And I think we're seeing that with big tech.


Yeah, I yeah, I don't take a libertarian stance on this. I think action needs needs to be taken because there's competing principles here within conservatism. And that's fair. Right. And then you got a battle out those competing principles, the notion that, hey, we'll just, you know, parler. Right, like more competition now, that's not going to work here. We know that they have a strong hold on the monopoly. I want to go back to OK.


I want to I don't not sure I really followed through with that that thought thread on abolishing to 30 and what it would do. So you did mention you don't think it would end the Internet because some people say. Right. And the it'll end these platforms in their entirety. You're not so sure that would happen? I guess the next question is, would it even solve this problem that we're trying to solve?


It would not solve all of the problems that people have identified in articulated with respect to big tech. And a lot of that goes back to the First Amendment. If you were to abolish two 30, that would not prohibit Twitter from placing a fact check label on someone's tweet. It wouldn't prohibit them from kicking someone off the platform because they always have the First Amendment right to do it. My view, though, is Section 230, which is a right above and beyond the First Amendment.


It's basically some people characterize it as a get out of litigation, faster car. I think even though we may end up in the same place with the First Amendment would do with two 30. I do think that two thirds say conduct influencing regime and it is putting a thumb on the scale in favor of more censorship. So if you were to get rid of two, three, or at least get rid of that C2 provision of 230, keeping the CI one that we talked about, I think the upshot is at least around the edges, you get more speech on the Internet, not less.


OK, so it might improve it a little bit, but it's not going to stop people from it's not going to stop Twitter from censoring necessarily. They would still be able to argue under the First Amendment that they have the right to do it because it's their platform. So and this is I mean, I'm literally thinking through this as we go, because I have I I've been suspicious of of a lot of these so-called solutions to this. It just seems like we're we're we're looking at it in black and white terms when in reality there's a ton of gray area here and we've got to get it just right.


I think we all want to get to the same place, at least as conservatives. Democrats want more censorship. I can't believe that's true. I can't believe that there's an American political party that doesn't believe in free speech. I think it's insanity. I think I question whether there's any liberals left in this progressive party. So, I mean, you're exactly right.


We talk a lot about two three reform and it's bipartisan concern, but you nailed it. We are pulling on opposite ends of this thread. Republicans want more speech on the Internet, Democrats want more censorship.


And Joe Biden has called for repeal of Section 230. Right. So that should give us a little bit of pause, guys. Like, why is that? These are the people who want more censorship. Also think this is their their route to more censorship. This is very concerning. And it's for the reasons you just stated. Right.


Some of it goes to C1, C2 again, the idea that you're not liable for someone else's speech, I think that's a good piece of two thirty. We should keep that. I just think we should put people to a higher standard when they take speech down.


Yes, right. And we kind of talked about that and that higher standard would I kind of mumbled through it right now. I think it would look. But can you do it more lawyerly terms like what does that standard look like?


So right now, the statute says a good faith basis for finding that it falls within one of those categories that you articulated. But the less obvious. Exactly right. Exactly right. I still don't know if I'm saying that correctly, but courts have looked at two thirty in effectively eliminated that and said, you have carte blanche. Right. You can do take down any content for any reason, for no reason. You still get to justice. Thomas just made this point in a statement on the Supreme Court.


So I think that would go a long ways to just return people and remind them, no, if you're going to take speech down with two thirty, you need to fall within the criteria that Congress specified because courts have basically given Internet websites carte blanche to take down speech and still get to 30 protections of courts done that just because they're referencing the First Amendment on this and your ability as a platform that you created as a private individual to to do whatever you want with that platform?


Yeah, there's a number of cases, including one, you know, out of the Fourth Circuit, not to get too far into the weeds that were early on looking at this. And I think they looked at sort of some of the policies and purposes of two 30 in. They just overread the immunities. I think Congress was a bit more specific in the statute, but we see this all the time. Sometimes, you know, courts get things wrong in one direction or the other direction.


I think this is one that's happened here. And that's what Justice Thomas said. He specifically said courts have made a mistake here.


OK, so Justice Thomas is kind of on our side here. OK, I was I was unclear on that. I thought it was on the opposite. OK, well, I was like, Jesus is the one thing that I might disagree with.


The great Justice Clarence Thomas, he's still solid across the board, thank God.


And that makes sense because the Supreme Court has has has ruled on previous instances where there's a. There's a confrontation between private property rights and free speech. I have to pull up the exact cases. I can't remember them off the top of my head, but the basically goes something like this. There's like a shopping mall and people want to hand out letters or something or leaflets in that shopping mall or away or there's a conflict there because because the people handing those out are like, well, this is my right.


I can go to other people and give them things. Now, the owners of this establishment, maybe it's a mall and it's, you know, maybe it's an away whatever, you know, it's because it's not quite like your own home.


It's not quite your private property. But it's you know, it's a it's a place where people gather. So it's a little different. Right. So there's some gray area there and there's there's a conflict there. And so that went to the Supreme Court. The Supreme Court sided with free speech.


So why is that different than here? I mean, why can't we see Twitter as this this town square? Basically, you look down that one semester you had at Harvard Law School, it's really paying off.


I think we should go back. Oh, man.


An honorary degree sister in law is going to be so mad when she hears that say all the time, you know, she's a lawyer. And I'm like, you know, I'm basically a lawyer. Got a half I've got a half credit. It's not that hard.


Harvard Law, you pretty much know the case. I think it might be called Prunier. I may have the case wrong. But you're right. It was a shopping center case. And generally we consider a shopping center like someone's home was private property.


Therefore, the owner of the home, the owner of the shopping mall, can kick people out for any reason. They don't have to be restricted by the First Amendment. If it was a government building, you could not kick someone out in violation of their first rights, you know, state action doctrine. But it's a private actor. So some people have said, why don't we take that case, all the shopping mall case and apply that to Twitter or Facebook and say this is the modern day public square is at least as open as the shopping mall was.


And therefore, we should consider them to be a state actor for First Amendment purposes and therefore they can't discriminate against people in the first moment rights. I would say this look, I think the shopping mall cases were sort of the high watermark of turning private actors into effectively government actors. And again, this cuts back, as you noted, the sort of other threads of conservative ism, which is, you know, private property rights. And so I do think from my personal view, classifying these websites as public squares and therefore making them comply with the First Amendment would not be the right approach to take.


But I do think there are other paths we have to get at that similar result, which is, again, when you make a representation, hey, come here. My shopping mall is wide open. Anyone can come here. Well, you should be held accountable to that. And that's why I think the Federal Trade Commission could step up. And when these websites say we don't discriminate against, you know, people's viewpoints, but in fact, you do, you're liable for that.


That's not a First Amendment issue. It's not coming out to the First Amendment. It's basic consumer protection. And so I think the Federal Trade Commission could step up to the plate and hold these entities accountable. Transparency is the other solution.


Interesting consumer protection laws are the better the better route for this. Exactly. In transparency. Tell me the rules of the road.


You know, if I'm going to go to your shopping mall, invest money to get on your platform, YouTube. Right. I'm going to invest money in creating a channel. Right. I don't want the rug pulled out from under me a year from now, so.


And they did. They sold us the wrong bill of goods. Like you said they started out is that this is where the free speech happens. And over time, it's like they have this plan all along, get as many people addicted to this as possible, make sure that they get their monopoly that they want and then, you know, swing elections. I mean, you know, if you really want to be objective about about, you know, election integrity, it's these social media companies hiding the job or hiding the Hunter Biden story right before the election.


It's it's I mean, it's it's you know, you go on and on and on. It is.


I mean, if you look back at 2016, a lot of these websites got a lot of flak from the far left for the crime and their view of staying neutral in the 2016 election, because a lot of work in the ref leading up to 2020.


And I think it's pretty clear that it won. You have these, you know, potential bombshell story on Unabiding The New York Post and you have Twitter just spiking the story. Yeah.


And now after the alerts, to their credit, did make the story much more prevalent.


But I just get the good news. But we have new revelations now after after the election. All of a sudden it's OK to talk about it on these websites again. So I think the hypocrisy, the double standard, again, look, if Jack Dorsey wants to run a far left website, God bless him. But just be transparent about it and let people make their decisions based on that.


Are there any Democrats that will work with us on this besides Tulsi Gabbard? I was going to say it's also a gaffe, but she's gone. I mean, well, she's gone after January. She's great. There's some reforms around the edges. So there's some bipartisan bills on the Senate side. So Shots and Thune have some legislation. Blumenthal has won. Again, some of those legislations, though, start to pull in the opposite direction. But in terms of people that would get on board and say, you know, look, I want more speech, not less, I don't think you're going to find too many dance partners on the other side of the aisle.


And I think, look, this started, in my view, from college campuses, the safe space move. And then from there and Discon Valley, it's a it's a cultural aversion to free speech. This is the every every policy is downstream of the culture, cultural movements. Exactly right.


So college campuses went to Silicon Valley. And I think now we see it moving into C suites as well. And I think it's a dangerous trend. As you noted. It's a it's an illiberal trend. And I think it's it's not good for the country. I think we need to be able to debate ideas. And we couldn't we can't just shut down conversations.


It's a good place to end. So we have these conversations. Can't shut us down. At least Apple's not doing that. Basically say what went on here. Not that I go really over the edge anyway.


And thank you so much for being on. Great episode. Really appreciate it. Very enlightening. Thanks.