Some pundits predict the “Christchurch call to action" and the PM's upcoming social media summit in Paris won’t move US-based tech companies. They've always resisted regulation and can fall back on powerful US free speech laws. But could reformers find US lawyers and lawmakers end up on their side?
After the announcement of a summit in Paris next month plenty of pundits predicted it would fail.
They pointed out titanic tech companies that run and profit from the most popular global online platforms are based in the US where they have successfully staved off meaningful regulation so far. And the First Amendment backstops freedom of expression for their users.
"The nature of their black and white constitutional protections on free speech in the US - and the current state of their politics - don’t leave me with any confidence that they will be able to drive change in this area," Internet NZ chief executive Jordan Carter wrote on The Spinoff.
Tech expert and journalist Bill Bennett seemed to agree on Newstalk ZB last Wednesday.
"The problem with the US is they have two things that stop them from acting. One is the First Amendment which is all about free speech and not censoring people. The second thing is something called Section 230 that gives social media companies an out. They are not responsible for things posted on their site," he said.
Section 230 is a provision in the Communications Decency Act - much to the relief of online entrepreneurs.
Since 1996, it has immunised Internet services from liability for third-party content. In the years that some of them have grown to become the biggest and most far-reaching companies in the world, Section 230 has been a crucial shield from punishing lawsuits.
But US lawmakers' growing skepticism means Section 230 immunity is in their sights.
Their concern peaked recently when an online ad site called Backpage was taken to court for offering underage sex, and it used Section 230 to avoid prosecution.
"Section 230 has turned into a Teflon shield, not to protect free speech but to protect business revenue," said a journalist following the story of a girl forced into prostitution this way whose family tried to prosecute Backpage. The US Senate has passed a bill amending Section 230 with the goal of stemming online sex trafficking. It has been sent to President Trump for his sign-off.
The crucial issue is how much websites are involved with or connected to illegal or immoral content created by users. It echoes the "publisher and postman" distinction voiced by Prime Minister Jacinda Ardern after the Christchurch mosque attacks.
A senator who helped draft the original section 230 - Ron Wyden from Oregon - told NPR this week the likes of Google, Facebook and Twitter must know "wield the sword themselves" to cut out criminal stuff from their services - or "face losing their shield in the Communications Decency Act."
Wyden recently said that directly to Facebook’s deputy Sheryl Sandberg and Twitter’s boss Jack Dorsey during a Senate hearing last September.
But if that shield was removed from the law, would users’ free speech rights still be protected by First Amendment anyway?
Maybe not, according to internet law prof Eric Goldman from Mountain View California, global HQ of Google.
“Attacking the immunity really isn’t about sticking it to Google and Facebook,” he warned in a recent paper. He thinks cutbacks of Section 230’s scope do pose serious risks to free speech online.
So is it the outcome of this behind-the-scenes legal argument playing out in the US right now - and not a headline-making political summit in France - which will really determine whether internet giants take responsibility for extreme content on their platforms?
"Section 230 is a pretty blunt tool and the Internet has changed a lot since 1996, and it was founded on the assumption that the platforms maintain some sort of standards," internet lawyer Rick Shera from the firm Lowndes Jordan told Mediawatch.
He's a board member of Netsafe and Internet NZ and also a member of the informal group of experts Jacinda Ardern consulted last month.
'Having these organisations front up and commit to things is good. We want to see them enforce their own rules. If you have a look at their terms of service they would allow them to do anything we want and more," he said.
"I’m not sure the original creators of it would accept that is appropriate to have this sort of protection for these types of platforms providing services which are much more like publishers and editors in the old mainstream media."
That’s the argument Ms Ardern and Mr Macron are going to have to win in Paris.
"That’s why New Zealand teaming up with a European country like France is interesting because if we were to try to align with the US we are going to come up against that stumbling block," he said.
"Europe has said: 'Look - if you target people in Europe or you have some business connection with Europe our laws are going to apply'. And by the way there are significant fines like 4 percent of global revenue that will apply no matter where you are," he said.
"Tax laws are similar. Once we get to that level an international agreement driven by France and New Zealand may actually achieve something ...and Section 230 may not make as much difference as some people might think.
"I’m glad we are sticking to violent extremism and terrorism. Once you go into fake news, damage to democracy and other forms of online harm it becomes very difficult. Freedom of speech and the US position on that make it hard to make gains, so if the target is narrow it may be easier," he said.
"With the development of the internet you do see points in time where radical change happens and I suspect this is one such time."