Sunday, September 22, 2019


It’s impossible to surf the Web without encountering ads promoting the sale of stimulants, weight loss pills, remedies for dysfunction, and other pseudo-pharmaceuticals. They’re ubiquitous and, for the folks who sell these modern-day patent medicines, highly lucrative.

Even worse though is the proliferation of online sellers promoting the purchase of illegal drugs over social media platforms like Twitter, Instagram and Facebook. Powerful opioids including fentanyl, so-called recreational drugs like Ecstasy, even things advertised as authentic, FDA-approved meds but are instead counterfeits coming from China or Mexico that aren’t anything like what they’re labeled are available if you’re dumb enough buy them.

All of them are illegal. And all of them present what should be obvious health risks to U.S. buyers looking for cheap highs or cheaper alternatives to what they can already buy at the local pharmacy or legitimately through the mail. It’s a problem out of control and growing worse that Congress needs to involve itself in.

Many right-thinking politicians have thus far adopted a hands-off where Big Tech is concerned. Whatever the problem, they expect the sites to police themselves, but that hasn’t worked. The tech companies have found a comfortable place to hide behind Section 230 of the Communications Decency Act, the catch-all clause absolving them of responsibility for what their users do with their platforms. They may publicly deplore the postings that advertise illegal drugs for sale and the like but the scheme in private to avoid serious congressional scrutiny that might hold them responsible for the posts they give a home.

This pattern of inadequate, dilatory responses hasn’t been limited to drug sales, and it needs to change. There’s ample precedent for the government to act. Backpage, a now-shuttered website, was so notorious for failing to police its ad marketplace facilitating forced prostitution and child exploitation the U.S. government seized it in April. Earlier this spring, President Trump ordered a crackdown on the sale of counterfeit goods online which White House trade adviser Peter Navarro called a “shot across the bow to those companies. If you don’t clean it up, then the government will.”

That’s the kind of threat that tends to get attention from the business community. When online hate speech and threats of violence became an unavoidable concern, Facebook announced in 2017 that it would hire 3,000 more monitors to review posts reported by users. When Russian attempts to manipulate American elections became impossible for them to deny, Twitter began to eliminate tens of millions of suspicious accounts.

Each of these efforts had, at their heart, the desire to prevent the government from acting. To combat the spread of illicit drugs sales on social media, Congress needs to consider modifications to Section 230. Former U.S. Rep. C. Christopher Cox, who originally came up with it, has said its original purpose “was to help clean up the Internet, not to facilitate people doing bad things on the Internet.”

Instead, as Mr. Cox alluded to, it’s become the justification for not doing anything about some of the worst stuff on the Internet. Section 230 has been used to protect sites hosting revenge porn, extremely gruesome videos, or violent death threats. The broad leeway given to Internet companies represents “power without responsibility,” Georgetown University law professor Rebecca Tushnet wrote in an oft-cited paper.

Congress needs to investigate whether social media and Internet sales and advertising platform sites are taking reasonable steps to prevent illegal drug sales from being promoted or transacted. Asking the executives who make policy for these platforms up to and including the dominant players in “big tech” like Amazon and Alphabet, the holding company that owns Google, for details regarding existing policy and complaint resolution when someone reports a site would be a good first step.

These companies need to have adequate measures in place to allow users to report inappropriate content, complaints that should be responded to, and handled quickly and appropriately. Deleting posts offering illegal drugs for sale and deleting user accounts should be easy and protected activity. Most importantly, Congress needs to investigate whether these sites have acted proactively or if they wait until there’s a user report. The nature and timing of the steps they have taken to address potential illegal drug sales is a matter very much in the public interest that is not and should not be protected by claims regarding rights under the First Amendment, trade secrets or other proprietary information, or Section 230.

As much as we abhor heavy-handed government regulation, if Congress determines that overall the social media and Internet platform sites have not taken adequate steps, legislation amending Section 230 to clarify it does not hold the users and providers of interactive computer services harmless where the enforcement of federal and state laws relating to illegal sales of drugs may be in order.

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