“The fatal error is ours. Legislators set out a regulatory regime that keeps regulation at bay. The only other industry with a similar protection is the gun industry.” — Olivier Sylvain
There are certain words in book titles that provoke. “Reclaiming”, for example. My guest today is happy to defend the provocation. Fordham law professor and former FTC senior advisor Olivier Sylvain argues in his new book, Reclaiming the Internet, that the internet was never really ours to begin with—and that the story about user control, free speech, and digital democratisation was always more nostalgia than reality.
But Sylvain’s argument in Reclaiming the Internet: How Big Tech Took Control—and How We Can Take It Back is not the usual big-tech-is-bad narrative (yawn). He doesn’t blame the companies. He blames us—or rather, Congress. The fatal error, he says, was Section 230 of the Communications Decency Act, passed in 1996, which created a blanket immunity from liability for companies trafficking in user-generated content. The only other industry with comparable legal protection, he says, is the gun industry. That immunity enabled the attention economy’s business model. Infinite scrolling = infinite advertising = infinite profit.
What follows from that error is now everywhere: autoplay, algorithmic recommendation—design features engineered to hold your attention, not to facilitate free speech. Sylvain insists these companies aren’t really platforms. They are, instead, services delivering content pursuant to their bottom line. And now the same Nineties playbook—innovation, user control, free speech—is being replayed with AI. Companies are deploying chatbots before they’re ready, racing each other to market. A young man killed himself after a Gemini chatbot told him to and Google invoked the First Amendment in its defence.
The fix, Sylvain argues, is not to abolish Section 230 but to attend to the business model itself: data minimisation, purpose limitations, and the kind of product-safety regulation that every other industry—from automobiles to toys to food—already accepts. I should disclose that my wife runs litigation at Google, so I’m all too familiar with the counter argument. But Sylvain makes a persuasive case even if his reclamation project is still a little too Rousseauean for my Hobbesian taste.
Five Takeaways
• The Fatal Error Was Ours, Not Theirs: Sylvain doesn’t blame big tech. He blames us—or rather, Congress. Section 230 of the Communications Decency Act created a blanket immunity from liability for user-generated content. The only other industry with comparable protection is the gun industry. That legal shield became the business model.
• These Are Not Platforms: The word “platform” implies a neutral conduit connecting users. Sylvain says that’s wrong. These are companies engineering your experience—infinite scroll, autoplay, algorithmic recommendation—to hold your attention and serve their bottom line. The free speech story is cover for a commercial design.
• The Same Mistake Is Happening with AI: The nineties playbook—innovation, user control, free speech—is being replayed with AI. Companies are deploying chatbots before they’re ready, racing each other to market. Internal documents show they knew the dangers. A young man committed suicide after Gemini told him to. Google invoked the First Amendment in its defence.
• Data Protection Is the Real Fix: Sylvain argues for data minimisation and purpose limitations—rules that would only allow companies to collect information consistent with the purposes a consumer signed up for. Not to monetise it for opaque reasons. That would dampen the incentive to engineer addiction without touching free speech.
• There’s a Bipartisan Consensus—but Only for Children: Something is shifting. Courts are rejecting Section 230 defences. Legislators on both sides agree something must be done. But the consensus only extends to protecting children. Sylvain thinks that’s a mistake: a 36-year-old man just killed himself after talking to a chatbot. Adults are vulnerable too.
About the Guest
Olivier Sylvain is a professor of law at Fordham University, a former senior advisor to the Chair of the Federal Trade Commission, and a Senior Policy Research Fellow at Columbia University’s Knight First Amendment Institute. His new book is Reclaiming the Internet: How Big Tech Took Control—and How We Can Take It Back (Columbia Global Reports).
References
References and previous Keen On episodes:
• Section 230 of the Communications Decency Act (1996) and its evolution into blanket immunity for tech companies
• Gonzales v. Google (2023)—the Supreme Court case that declined to rule on Section 230 but allowed the merits to proceed
• The Character AI / Gemini chatbot suicide cases—ongoing litigation against Google
• Tim Wu on the extractive economics of platform capitalism — previous Keen On episode
• Julia Angwin, Zephyr Teachout, and Stewart Brand—referenced in the conversation
About Keen On America
Nobody asks more awkward questions than the Anglo-American writer and filmmaker Andrew Keen. In Keen On America, Andrew brings his pointed Transatlantic wit to making sense of the United States—hosting daily interviews about the history and future of this now venerable Republic. With nearly 2,800 episodes since the show launched on TechCrunch in 2010, Keen On America is the most prolific intellectual interview show in the history of podcasting.
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