WASHINGTON, D.C. – As has been the case for some time now, there’s bipartisan agreement in Congress that something must be done about Section 230 of the Communications Decency Act.
Democrats and Republicans in Congress might not agree on what, specifically, Section 230’s defects are, but they do agree it has defects – and thus, the effort to “sunset” the provision currently underway in Congress.
“Section 230 was codified nearly 30 years ago as a ‘Good Samaritan’ statute designed to allow websites to restrict harmful content,” said Frank Pallone, Jr. (D-NJ), a Ranking Member of the House Energy and Commerce Committee, at a Communications and Technology Subcommittee hearing Wednesday. “Section 230 was written when the internet largely consisted of simple websites and electronic bulletin boards. Today, the internet is dominated by powerful trillion-dollar companies. Many of these companies have made their fortunes using sophisticated engagement and recommendation algorithms and artificial intelligence to harvest and manipulate our speech and data. All in an effort to maximize the time we spend on their platforms and to sell advertising.”
Pallone further asserted that “these platforms are not working for the American people, especially our children.”
According to Pallone, the ‘safe harbor’ afforded to online platforms via Section 230 has resulted in “provocative videos glorifying suicide and eating disorders, dangerous viral challenges, horrific child abuse images, merciless bullying and harassment, graphic violence, and other pervasive and targeted harmful content, is being fed nonstop to children and adults alike.”
“Just this week, a popular event and ticketing platform was found to have been promoting illegal opioid sales to people searching for addiction recovery gatherings,” Pallone said. “We deserve better.”
Pallone added that he “reject(s) Big Tech’s constant scare tactics about reforming Section 230,” anticipating the very sort of pushback the idea of sunsetting Section 230 is receiving today.
“Reform will not ‘break the internet’ or hurt free speech,” Pallone said. “The First Amendment – not Section 230 – is the basis for our nation’s free speech protections and those protections will remain in place regardless of what happens to Section 230.”
In response, Zach Lilly of NetChoice, a tech industry trade association which has filed legal challenges to several state laws designed to regulate social media platforms, likened the idea of sunsetting Section 230 to signing the “internet’s death warrant.”
“While this move was ostensibly made to motivate industry to write a replacement bill for legislators, this is an explanation of unprecedented bad faith,” Lilly wrote. “The Section 230 sunset amounts to a full repeal, which would decimate small tech companies, limit online speech and undermine the entire internet ecosystem as we know it.”
Just as Pallone isn’t alone in believing Section 230 needs to be overhauled, Lilly is far from alone in thinking Congress is better off leaving the safe harbor alone, lest they do more unintended harm than good.
In a letter to Pallone and Rep. Cathy McMorris Rodgers (R-WA), the Chair of the Committee, a group of stakeholders wrote to “express our strong opposition to the bipartisan discussion draft Section 230 sunset legislation.”
“While we understand the stated intention to bring large technology companies to the table to reform Section 230, we believe this approach is arbitrary and unpredictable and overlooks the critical importance of Section 230 protections for the broader Internet ecosystem,” the letter stated. “The proposed legislation, as presented, appears to be primarily focused on its potential impact on large technology companies. However, it fails to recognize the indispensable role that Section 230 plays in fostering a diverse and innovative digital landscape across many industries that extends far beyond the realm of only large technology corporations.”
“Section 230 protections are essential for nurturing a thriving ecosystem of small and medium-sized tech enterprises that make up the Internet’s infrastructure, educational institutions, libraries, ISPs, and many other vital stakeholders,” the signatories added in the letter. “These protections provide the necessary legal framework for innovation, creativity, and free expression to flourish online.”
The signatories argued that by “narrowly framing the debate around the interests of “Big Tech,” there is a risk of misunderstanding the far-reaching implications of altering or dismantling Section 230.”
“The heaviest costs and burdens of such action would fall on the millions of stakeholders we represent who, unlike large companies, do not have the resources to navigate a flood of content-based lawsuits,” the signatories added. “While it may seem that such changes will not ‘break the Internet,’ this perspective overlooks the intricate interplay of legal liability and innovation that underpins the entire digital infrastructure.”
The letter’s signatories include the American Library Association, the Association of Research Libraries, the Consumer Technology Association, Creative Commons, the Internet Archive, the Internet Infrastructure Coalition, the Internet Society and the Wikimedia Foundation.
Like Pallone, McMorris Rodgers argued that the fears of critics are overblown.
“Our goal is not for Section 230 to disappear,” she said at yesterday’s hearing. “But the reality is that nearly 25 bills to amend Section 230 have been introduced over the last two Congresses. Many of these were good-faith attempts to reform the law, and Big Tech lobbied to kill them every time. These companies left us with no other option.”
One thing missing from the debate over Section 230’s fate, which as McMorris Rodgers noted is nothing new, is likely to continue, whether or not it produces any substantive reform. Criticizing Section 230 and “Big Tech” clearly is considered good politics by both major parties and their most prominent representatives. After all, prior to the 2020 election, both Joe Biden and Donald Trump called for the revoke/repeal of Section 230, albeit for very different reasons.
Will the latest call for reform of Section 230 lead to anything substantive? Who knows. Either way, we can count on our elected officials to continue to fundamentally misunderstand the industries they try to regulate and badly misconstrue (intentionally or otherwise) legislation their body wrote in the first place, while the industries at issue beg them to simply leave well enough alone.
As David Byrne might say, “same as it ever was.”
