Section 230, the law that is often credited as the reason why the internet as we know it exists, could be facing its greatest threat yet. A seemingly coordinated attack on the law is unfolding this week from the Trump administration and Republicans in Congress. It follows complaints that platforms such as Facebook, Twitter, and YouTube unfairly censor conservative speech. Though some are framing the efforts as a way to promote free speech, others say the result will be exactly the opposite.
Following President Trump’s executive order aimed at social media companies he thinks are censoring right-wing voices, the most direct actions taken against Section 230 arrived this week in the form of a new bill from Sen. Josh Hawley and a set of recommendations from Attorney General Bill Barr.
Hawley, a 40-year-old Republican from Missouri who has made no secret of his intentions regarding Section 230, is proposing a bill that would require large platforms to enforce their rules equally to stop a perceived targeting of conservatives and conservative commentary. Hawley is also rumored to be preparing another Section 230-related bill to add to his growing collection.
Meanwhile, Barr’s Department of Justice said it is calling for new legislation that, in certain cases, would remove the civil liability protections offered by Section 230. If platforms like Facebook, Google, and Twitter somehow encouraged content that violates federal law, these platforms would be treated as “bad samaritans” and would lose the immunity offered by Section 230. Like Hawley’s bill, the DOJ’s proposed rules would also force platforms to clearly define and equally enforce content rules.
Civil rights advocates say they’re concerned that some of these proposed measures may end up becoming law, leading to all sorts of unintended consequences and stifling speech — which will ultimately punish internet users far more than the websites.
“I do think there is a very serious risk to Section 230 right now,” Kathleen Ruane, senior legislative counsel at the American Civil Liberties Union (ACLU), told Recode. “And they all concern me, not for the platforms, but for users and online free expression.”
Section 230, briefly explained
Section 230 is part of the Communications Decency Act of 1996. It says internet platforms that host third-party content are not civilly liable for that content. There are a few exceptions, such as intellectual property or content related to sex trafficking, but otherwise the law allows platforms to be as hands-off as they want to be with user-generated content.
Here’s an example: If a Twitter user were to tweet something defamatory, the user could be sued for libel, but Twitter itself could not. This law has allowed websites and services that rely on user-generated content to exist and grow. If these sites could be held responsible for the actions of their users, they would either have to strictly moderate everything those users produce — which is impossible at scale — or not host any third-party content at all. Either way, the demise of Section 230 could be the end of sites like Facebook, Twitter, Reddit, YouTube, Yelp, forums, message boards, and basically any platform that’s based on user-generated content.
The law also gives those services that immunity even if they moderate certain content. This is why, for instance, Twitter can take down tweets that it deems in violation of its terms of service. Sen. Ron Wyden, who was one of the architects of Section 230, has likened these provisions to a sword and shield for platforms.
But as some of these platforms have increased in size, scope, and power, there has been increasing support on both sides of the aisle to chip away at the law that allowed them to flourish free of much accountability.
Democrats have supported laws that crack down on websites that facilitate sexual abuse. The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) made platforms legally responsible for third-party content related to sex trafficking. The two bills, known together as FOSTA-SESTA, overwhelmingly passed in the House and Senate, and President Trump signed them into law in 2018.
More recently, there’s the bipartisan Eliminating Abusive and Rampant Neglect of Internet Technologies Act (EARN IT), which would require companies to follow a yet-to-be-defined set of “best practices” or else lose Section 230 immunity if third parties post child pornography on their platforms. Civil rights advocates worry what those “best practices” will be and how they might stifle all speech.
Josh Hawley’s crusade for a different internet
Many Republicans see altering Section 230 as a way to force platforms to fit their definition of “politically neutral.” Typically, this translates into restricting a website or service’s ability to moderate content.
This seems to be the goal of Hawley’s bill, which is called the Limiting Section 230 Immunity to Good Samaritans Act. Cosponsored by Republican Sens. Marco Rubio, Mike Braun, Tom Cotton, and Kelly Loeffler, the bill would force large tech companies — that is, companies that have 30 million American users or 300 million users worldwide, as well as $1.5 billion annual revenue — to act in “good faith” when enforcing their content rules. Acting in “good faith” here means that platforms must clearly define what their rules are and enforce them consistently, rather than, say, targeting certain types of political speech, as some conservatives believe they currently do.
Users who feel that their content is being unfairly removed would also have a new tool for reprisal. Hawley’s bill gives individual users who believe they’re being censored the right to sue companies for at least $5,000 as well as attorney’s fees. You can imagine how many people would be happy to take advantage of that, which would give platforms a big incentive to comply lest they be flooded with millions of lawsuits.
“It is impossible to moderate user-generated content at scale perfectly, or even well, and this bill would weaponize mistakes,” Aaron Mackey, staff attorney for the Electronic Frontier Foundation, told Recode. “There are legitimate concerns about the dominance of a handful of online platforms and their power to limit internet users’ speech. But rather than addressing those concerns, this bill bluntly encourages frivolous litigation and will lead to massive trolling.”
This isn’t Republicans’ only recent attempt at limiting Section 230. In 2019, Hawley introduced the Ending Support for Internet Censorship Act, which would have required the Federal Trade Commission to declare platforms unbiased to get Section 230 protections. The same year, Rep. Louie Gohmert introduced the Biased Algorithm Deterrence Act, which would remove Section 230 protections from companies that moderated content using algorithms. Both were responses to conservative complaints that companies including Facebook, Twitter, and Google were selectively enforcing their content guidelines, de-platforming, shadow banning, or otherwise censoring conservatives while mostly leaving liberals alone. Sen. Ted Cruz has also been a vocal critic of platforms in this regard, erroneously asserting that Section 230 includes some kind of political neutrality requirement even though the law doesn’t say anything to that effect.
Those complaints have gained steam recently. Despite being one of the biggest beneficiaries of the influence and reach these platforms can afford, President Trump had a recent tantrum over Twitter’s decision to fact-check two of his tweets, which contained inaccurate information about mail-in ballots. Soon after, Trump signed his executive order aimed at social media companies, which said platforms that go beyond “good faith” content moderation should not be entitled to Section 230 protections. An executive order is not a law and therefore its impact on an actual law is likely limited, but the right’s intention to go after big tech companies was made very clear.
The Trump administration says, “The time is ripe”
While recent bills in Congress have been markedly divisive, Barr’s proposed reforms manage to incorporate the issues that both Democrats and Republicans have raised with Section 230. The DOJ called this a “productive middle ground.” Note that the department’s proposals are simply suggestions for the laws Congress should enact that would actually change things, but they, like the executive order, signal how and why the Trump administration hopes to go after or control large platforms.
One of Barr’s recommendations is to withhold immunity from “truly bad actors,” which are defined as sites promoting, soliciting, or facilitating content that violates federal law. Sites must also “maintain the ability to assist government authorities to obtain content (i.e. evidence) in a comprehensible, readable, and usable format.” This would be the end of services that use end-to-end encryption, which Barr has a particular problem with, and which civil liberties advocates believe will be the ultimate effect of the EARN IT act.
There’s also a section that addresses “open discourse and greater transparency.” Here, Barr recommends something along the lines of Hawley’s bill — that platforms must have clear terms of service for what is and isn’t allowed on their platforms and moderate content accordingly. This includes defining “good faith,” similar to Hawley’s bill, as well as removing the part of the law that says platforms can moderate content that is “otherwise objectionable,” as Barr believes the term is too vague and has given platforms the freedom to remove anything simply by saying it’s objectionable in some way.
Wyden was not impressed by the recommendations to change the law he helped create.
“This jumbled mess of a proposal is yet another cynical attempt by the Trump administration to bully the tech companies into letting the president and his cronies post lies and conspiracies on their sites, and is clearly not intended to become law,” the Oregon senator told Recode. “Congress should stay far away from this disingenuous plan that would gut the ability of tech companies to take down hateful slime, spawn endless frivolous lawsuits, and chill Americans’ free speech online.”
In the background of all of this is a growing public sentiment against powerful tech companies due, in part, to how they help spread fake news and the incredible amounts of personal information about us they collect. That has surely emboldened politicians to act accordingly. Not only do we have multiple bills against Section 230, but there are also ongoing efforts to break up the biggest tech companies through antitrust investigations both in the United States and the European Union.
“The Department of Justice has concluded that the time is ripe to realign the scope of Section 230 with the realities of the modern internet,” the recommendations say.
This all adds up to a very real possibility that Section 230, at least as we know it, won’t be around for much longer. Hawley’s bill, which has no bipartisan support as of now, might go the way his past bills did — that is to say, nowhere. But the EARN IT Act does have bipartisan support and, like FOSTA-SESTA which did pass, targets child sexual abuse. Few politicians may want to vote against a law that says it’s meant to combat child porn, regardless of any unintended consequences.
The consequences of changing Section 230 will inevitably change the internet and what we’re allowed to do on it. Ruane, from the ACLU, points to the impact of FOSTA-SESTA, which she says “has been a complete and total disaster,” and its unintended consequences as a guide for what we can expect. Faced with the new law, online platforms didn’t seek to target specific content that might relate to or facilitate sex trafficking; they simply took down everything sex or sex work-related to ensure they wouldn’t get in trouble.
“It was only supposed to apply to advertisements for sex trafficking. That is absolutely not what happened,” Ruane said. “All platforms adopted much broader content moderation policies that applied to a lot of LGBTQ-related speech, sex education-related speech, and … sites where [sex workers] built communities where they shared information to maintain safety.”
She added, “It is astonishing to me that that law is being used as an example of what we should do in the future because of all the clear harms that censoring a broad amount of speech has caused.”
As for Wyden, he wrote in a recent op-ed that laws that force platforms to be “politically neutral” may not encourage more speech, as conservatives who favor those laws claim, but rather suppress it. Facebook has taken a similar stance, saying on Wednesday that changing Section 230’s liability protections would “mean less speech of all kinds appearing online.”
Section 230 won’t change tomorrow, if it changes at all. But a series of seemingly coordinated attacks from two of the three branches of government certainly shows some momentum toward the possibility of change.
On one hand, the internet has profoundly changed since the law was introduced 25 years ago and it’s not unreasonable to believe that the law should change with it. On the other, those changes likely won’t have the impact on the companies they’re targeting that lawmakers and the administration seem to desire. The impact will largely fall on the people who use the platforms those companies run: You.
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