WASHINGTON — Even during an ongoing public health crisis, Congress remains preoccupied with reforming Section 230 of the Communications Decency Act.
Sens. Mark Warner (D-VA), Mazie Hirono (D-HI), and Amy Klobuchar (D-MN) recently proposed a sweeping fix to the benchmark 1996 law for allowing the internet to modernize into what we all know it as today. Referred to as the SAFE TECH Act, the proposed bill the three senators introduced would drastically claw back the liability shield provided to social media platforms and virtually all other websites.
The act intends to gut the language behind Section 230 and the law’s focus on third-party user violations. Since this portion of the existing law is extremely to-the-point and is merely interpreted through existing case law from the courts, any significant change made to Section 230 through the SAFE TECH Act would be monumental in nature.
A central portion to the bill involves payments and could strip further protections for transactions often protected under the law’s concise legal shield. Sen. Warner explained the payment provisions on Twitter, referring to content like online ads as vectors for “all manner of frauds and scams.”
Essentially, the intent here is to clamp down on threats to consumers who are victimized by malicious and fraudulent advertising content.
The senators, including proponents of the legislation, have yet to publicly recognize the potential harms to other types of payment on a variety of platforms. Allow me to explain a bit more clearly.
Here’s the current language in Section 230:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information speech provided by another information content provider.”
If the SAFE TECH Act is passed and signed into law by President Joe Biden, the language would be updated to reflect the following:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any speech provided by another information content provider, except to the extent the provider or user has accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech.”
And:
“[This section] shall be an affirmative defense to a claim alleging that an interactive computer service provider is a publisher or speaker with respect to speech provided by another information content provider that an interactive computer service provider has a burden of proving by a preponderance of the evidence.”
While Warner and his fellow sponsors claim that this language is an ostensible fix to hold accountable the countless abuses in web advertising perpetrated every year, the language is overly broad. That means virtually any paid service transacted on the internet could fall under this new regulation and be further scrutinized. Payments made to platforms such as Patreon, YouTube, other types of user-generated premium content, and web hosting services could be negatively impacted.
For adult content creators and webmasters, this especially could be bad news. If the SAFE TECH Act passes in its current form, payments transacted on platforms like OnlyFans, cam sites, premium communities on sites like Pornhub, and other types of web portals could be scrutinized and potentially held to a new and twisted conception of internet liability.
Since platforms in the adult content space accept payments from a diverse class of parties and through diverse means, the action of paying to make certain speech available online could fall under any would-be category of malicious intent. And, this listing of such payment activity would fall short in defining what truly is malicious activity and what isn’t.
This bill currently offers no limit or guidelines in which such platforms will be exempt or held at a lesser degree of liability. Sen. Ron Wyden (D-OR), one of the original authors of Section 230, told TechCrunch in a recent interview that this bill’s language is problematic.
“Unfortunately, as written, it would devastate every part of the open internet, and cause massive collateral damage to online speech,” Wyden said in the interview. “Creating liability for all commercial relationships would cause web hosts, cloud storage providers and even paid email services to purge their networks of any controversial speech.”
Open internet advocates like Wyden agree. I for one agree with him. Regardless of your definition of controversial content, the SAFE TECH Act is merely a well-intentioned fix to law with no practical understanding of the real issues at hand. The potential unintended consequences behind this bill are staggering, leaving proponents for the bill with a moral dilemma: restrict most forms of constitutionally protected speech to fight potential malice; or, permit for aggressive amendments to the legislation, offering more precise rules and regulations. A case can be made that certain platforms should be held in some degree of liability.
But, the solution to that issue shouldn’t come at the expense of an individual’s ability to make a living on the internet to support themselves financially. The SAFE TECH Act, if championed by Senate Democrats as the best possible reform to Section 230, requires amending and the input of performers and models.
