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Section 230

Senators Discuss Section 230 Shortcomings and Potential Reforms



Screenshot of Sen. John Thune from the webcast

July 28, 2020 — Senators on Tuesday remained broadly divided on the extent and direction that changes to Section 230 should take.

The tenor of the discussion at a Senate Commerce Communications Subcommittee hearing suggested that the law was overdue for an overhaul, as senator after senator criticized what the internet had become.

But proposals for concrete change were fewer. Subcommittee Chairman John Thune, R-S.D., and Ranking Member Brian Schatz, D-Hawaii, for example, introduced the Platform Accountability and Consumer Transparency Act calling for procedural transparency.

Some on the right, including Sen. Ted Cruz, R-Texas, and full committee Chairman Roger Wicker, R-Miss., offered both broad and narrow critiques of Section 230. On the left, Sen. Richard Blumenthal said the PACT Act didn’t go far enough.

And still others, including Sens. Amy Klobuchar, D-Minn., and Sen. Jacky Rosen, D-N.V., weighed into concerns about the intersection of artificial intelligence and the law.

Screenshot of Sen. Amy Klobuchar participating in the hearing remotely

A voice of caution against changes to Section 230

Witnesses warned against making hasty changes to the statute, with former Rep. Christopher Cox, a co-author of Section 230, pointing out the foundational role it had played in the development of the digital world since its inclusion as part of the 1996 Telecom Act.

“It’s important to remember just how much human activity is encompassed within this vast category we so casually refer to as the internet,” Cox said. “To the extent that any new legislation imposes too much compliance burden or too much liability exposure that’s connected to a website’s hosting of user created content, the risk is that too many websites will be forced to respond by getting rid of user generated content altogether.”

Also sounding a voice of caution was Jeff Kosseff, assistant professor of cyber science at the U.S. Naval Academy, who said that it was important to gather more facts before adjusting the law.

Screenshot of Jeff Kosseff, assistant professor at the U.S. Naval Academy, participating in the hearing remotely

“I don’t think we’re at the point of being able to reform, because we have so many competing viewpoints about what platforms should be doing on top of what we could require them to do because of the First Amendment, and other requirements,” he said.

Cox agreed, adding that another immediate challenge was to figure out what was actually doable. Reforming Section 230 seemed like a more daunting task than initially writing it had been, he said.

PACT Act would aim to increase platform accountability

The varied approaches that tech platforms take to objectionable content has “led to a limited ability for consumers to address and correct harms that occur online,” Thune said. “And as Americans conduct more and more of their activities online, the net outcome is an increasingly less protected and more vulnerable consumer.”

Thune and Schatz introduced the PACT Act in June. Thune said the bill would increase transparency without damaging the economic, innovative and entrepreneurial benefits stimulated by Section 230.

Screenshot of Sen. Brian Schatz participating in the hearing remotely

It would require platforms to post their content moderation procedures, submit quarterly reports to the Federal Trade Commission explaining content moderation decisions, define a prompt complaint and response system and implement a toll-free customer service line.

“Section 230 proponents say that Congress can’t possibly change this law without disrupting all of the great innovation that it has enabled, and I just disagree with that,” Schatz said. “The legislative process is about making sure that our laws are in the public interest.”

Blumenthal agreed with Thune and Schatz about the importance of increasing platform accountability.

“If there’s a message to the industry here, it is [that] the need for reform is now,” he said. “There’s a broad consensus that Section 230, as it presently exists, no longer affords sufficient protection to the public, to consumers, to victims and survivors of abuse.”

However, Blumenthal warned that the PACT Act did not go far enough, emphasizing the traumatic and lengthy process currently required in order for individuals to get abusive imagery such as child pornography removed from online platforms, involving obtaining a court order and locating all instances of the content.

Screenshot of Sen. Richard Blumenthal from the webcast

“I’m very concerned about the burden that’s placed on the victims and survivors,” he said. “The PACT Act does not provide any incentive for Facebook to police its own platform.”

Hate speech and algorithmic discrimination

“Most powerful online intermediaries today are anything but publishers and distributors of user generated content,” said Fordham Law Professor Olivier Sylvain. “They harvest, sort and repurpose user posts and personal data to attract and hold consumer attention, and more importantly, to market these valuable data to advertisers…The result is too often lived harm.”

Sylvain pointed to Facebook’s practice of collecting data on users to categorize them across hundreds of dimensions using automated processes.

“Under civil rights law, Congress forbids discrimination in ads on the basis of race, ethnicity, age and gender in the markets for housing, education and consumer credit,” he said. “But that is exactly what Facebook allowed building managers and employers to do.”

Screenshot of Olivier Sylvain, professor at Fordham University, participating in the hearing remotely

Klobuchar took a similar angle, highlighting certain ads targeted at African American-focused webpages during the 2016 election that told viewers they should vote by texting a falsified number that rather than waiting at the polls.

“One of the issues commonly raised regarding content moderation across multiple platforms is the presence of bias in artificial intelligence systems that are used to analyze the content,” Rosen said. “Decisions made through AI systems, including for content moderation, run the risk of further marginalizing and censoring groups that already face disproportionate prejudice and discrimination, both online and offline.”

In addition, content moderation often misses dangerous hate speech, Rosen continued, pointing out the antisemitic posts found to have been made by the Tree of Life synagogue shooter on a right-wing media platform prior to his deadly attack.

“There’s so much work to be done in this area, because despite the best efforts of even the most well-motivated social media platforms, we see examples where the algorithms don’t work…I think the most troubling challenge for writing law in this area is, what about the great middle ground, where the platforms are not bad actors, they’re trying to do the right thing, but it just doesn’t amount to enough?” Cox said.

Complexities of content moderation practices

“Is there an approach by which we can incentivize active, clear and consistent content moderation without the negative consequences of less open platforms and fewer new entrants into the internet ecosystem?” Sen. Tammy Baldwin, D-Wis., asked.

“I think you really hit the nail on the head in terms of what the challenge is here,” Kosseff said.

Rather than an overly prescriptive approach, Kosseff recommended moving toward transparency, adding that some platforms have already begun to take steps in that direction.

Witnesses emphasized the difficulty of large-scale content moderation for social media platforms.

 “The scale of these efforts is staggering,” said Elizabeth Banker, deputy general counsel of the Internet Association. “Facebook took action against 1.9 billion pieces of spam in a three-month period. In multiple cases, Section 230 has shielded providers from lawsuits from spammers who sued over removing their spam material.”

However, some senators were less willing to extend tech platforms the benefit of the doubt.

“The reality is that platforms have a strong incentive to exercise control over the content each of us sees, because if they can present us with content that will keep us engaged on the platform, we will stay on the platform longer,” Thune said.

Screenshot of Sen. Ted Cruz from the webcast

Cruz repeated his oft-made claims of anti-conservative bias and censorship on social media platforms.

“Given the monopoly power they have over free speech, I view that as the single greatest threat to our democratic process we have today,” he said.

‘Otherwise objectionable’ is not overly vague, according to author of Section 230

The hearing also featured discussion of the Commerce Department’s petition on Monday asking the Federal Communications Commission to issue proposed rules narrowing Section 230’s protections, under the direction of an executive order from President Donald Trump.

Cox pointed out that the original iteration of the bill that evolved into Section 230 contained a provision explicitly denying the FCC authority to regulate the content of speech.

“I would like to see the FTC be more active in this area — I’d like to see the FTC holding platforms to their promises,” Cox added.

Screenshot of former Rep. Christopher Cox participating in the hearing remotely

One of the potential ambiguities raised by the petition was the phrase “otherwise objectionable.”

“I question whether this term is too broad and improperly shields online platforms from liability when they remove content that they simply disagree with, dislike or find distasteful,” Wicker said. “The term may require further defining to reduce ambiguity, increase accountability and prevent misapplication of the law.”

Cox explained that ‘otherwise objectionable’ should be understood with reference to the list of specific offenses preceding it, adding that it was “not an open-ended granted immunity for editing content for any unrelated reason a website can think of.”

Section 230

Supreme Court Sides With Google and Twitter, Leaving Section 230 Untouched

A wide range of tech industry associations and civil liberties advocates applauded the decision to leave Section 230 untouched.



Photo of Justice Clarence Thomas by Stetson University used with permission

WASHINGTON, May 18, 2023 — The Supreme Court on Thursday sided with Google and Twitter in a pair of high-profile cases involving intermediary liability for user-generated content, marking a significant victory for online platforms and other proponents of Section 230.

In Twitter v. Taamneh, the court ruled that Twitter could not be held liable for abetting terrorism by hosting terrorist content. The unanimous decision was written by Justice Clarence Thomas, who had previously signaled interest in curtailing liability protections for online platforms.

“Notably, the two justices who have been most critical of Section 230 and internet platforms said nothing of the sort here,” said Ari Cohn, free speech counsel at TechFreedom.

In a brief unsigned opinion remanding Gonzalez v. Google to the Ninth Circuit, the court declined to address Section 230, saying that the case “appears to state little, if any, plausible claim for relief.”

A wide range of tech industry associations and civil liberties advocates applauded the decision to leave Section 230 untouched.

“Free speech online lives to fight another day,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “Twitter and other apps are home to an immense amount of protected speech, and it would be devastating if those platforms resorted to censorship to avoid a deluge of lawsuits over their users’ posts.”

John Bergmayer, legal director at Public Knowledge, said that lawmakers should take note of the rulings as they continue to debate potential changes to Section 230.

“Over the past several years, we have seen repeated legislative proposals that would remove Section 230 protections for various platform activities, such as content moderation decisions,” Bergmayer said. “But those activities are fully protected by the First Amendment, and removing Section 230 would at most allow plaintiffs to waste time and money in court, before their inevitable loss.”

Instead of weakening liability protections, Bergmayer argued that Congress should focus on curtailing the power of large platforms by strengthening antitrust law and promoting competition.

“Many complaints about Section 230 and content moderation policies amount to concerns about competition and the outsize influence of major platforms,” he said.

The decision was also celebrated by Sen. Ron Wyden, D-Ore., one of the statute’s original co-authors.

“Despite being unfairly maligned by political and corporate interests that have turned it into a punching bag for everything wrong with the internet, the law Representative [Chris] Cox and I wrote remains vitally important to allowing users to speak online,” Wyden said in a statement. “While tech companies still need to do far better at policing heinous content on their sites, gutting Section 230 is not the solution.”

However, other lawmakers expressed disappointment with the court’s decision, with some — including Rep. Cathy McMorris Rodgers, R-Wash., chair of the House Energy and Commerce Committee — saying that it “underscores the urgency for Congress to enact needed reforms to Section 230.”

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Broadband Roundup

White House Meets AI Leaders, FTC Claims Meta Violated Privacy Order, Graham Targets Section 230

The Biden administration announced $140 million in new funding for national AI research.



Photo of Vice President Kamala Harris by Gage Skidmore used with permission

May 5, 2023 — Vice President Kamala Harris and other senior officials on Thursday met with the CEOs of Alphabet, Anthropic, Microsoft and OpenAI to discuss the risks associated with artificial intelligence technologies, following the administration’s announcement of $140 million in funding for national AI research.

President Joe Biden briefly stopped by the meeting, telling the tech leaders that “what you’re doing has enormous potential and enormous danger.”

Government officials emphasized the importance of responsible leadership and called on the CEOs to be more transparent about their AI systems with both policymakers and the general public.

“The private sector has an ethical, moral and legal responsibility to ensure the safety and security of their products,” Harris said in a statement after the meeting.

In addition to the new investment in AI research, the White House announced that the Office of Management and Budget would be releasing proposed policy guidance on government usage of AI systems for public comment.

The initiatives announced Thursday are “an important first step,” wrote Adam Conner, vice president of technology policy at the Center for American Progress. “But the White House can and should do more. It’s time for President Joe Biden to issue an executive order that requires federal agencies to implement the Blueprint for an AI Bill of Rights and take other key actions to address the challenges and opportunities of AI.”

FTC claims Facebook violated privacy order

The Federal Trade Commission on Wednesday proposed significant modifications to its 2020 privacy settlement with Facebook, accusing the company of violating children’s privacy protections and improperly sharing user data with third parties.

The suggested changes would include a blanket prohibition against monetizing the data of underage users and limits on the uses of facial recognition technology, among several other constraints.

“Facebook has repeatedly violated its privacy promises,” said Samuel Levine, director of the FTC’s Bureau of Consumer Protection. “The company’s recklessness has put young users at risk, and Facebook needs to answer for its failures.”

Although the agency voted unanimously to issue the order, Commissioner Alvaro Bedoya expressed concerns about whether the changes exceeded the FTC’s limited order modification authority. “I look forward to hearing additional information and arguments and will consider these issues with an open mind,” he said.

Meta responded to the FTC’s action with a lengthy statement calling it a “political stunt” and outlining the changes that have been implemented since the original order.

“Let’s be clear about what the FTC is trying to do: usurp the authority of Congress to set industry-wide standards and instead single out one American company while allowing Chinese companies, like TikTok, to operate without constraint on American soil,” wrote Andy Stone, Meta’s director of policy communications, in a statement posted to Twitter.

Meta now has thirty days to respond to the proposed changes. “We will vigorously fight this action and expect to prevail,” Stone said.

Sen. Graham threatens to repeal Section 230 if tech lobby kills EARN IT Act

The Senate Judiciary Committee on Thursday unanimously approved the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, a controversial bill that would create new carveouts to Section 230 in an attempt to combat online child sexual abuse material.

But Sen. Lindsey Graham, R-S.C., the bill’s cosponsor and ranking member of the committee, expressed doubt about the legislation’s future, claiming that “the political and economic power of social media companies is overwhelming.”

“I have little hope that common-sense proposals like this will ever become law because of the lobbying power these companies have at their disposal,” he said in a statement on Thursday. “My next approach is going to be to sunset Section 230 liability protection for social media companies.”

If Congress fails to pass legislation regulating social media companies, Graham continued, “it’s time to open up the American courtrooms as a way to protect consumers.”

However, large tech companies are not the only critics of the EARN IT Act. The American Civil Liberties Union on Thursday urged Congress to reject the proposed legislation, alongside two other bills related to digital privacy.

“These bills purport to hold powerful companies accountable for their failure to protect children and other vulnerable communities from dangers on their services when, in reality, increasing censorship and weakening encryption would not only be ineffective at solving these concerns, it would in fact exacerbate them,” said Cody Venzke, ACLU senior policy counsel.

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Section 230

Narrowing Section 230 Could Destroy Smaller Platforms, Warns Nextdoor

Many small to mid-sized platforms operate on a business model that relies on content moderation.



Screenshot of Nextdoor Global Head of Policy Laura Bisesto from the CCIA webinar

WASHINGTON, April 4, 2023 — Narrowing Section 230 protections for online services could have significant economic repercussions, particularly for smaller platforms that rely on content curation as a business model, according to experts at a panel hosted by the Computer & Communications Industry Association Research Center on Tuesday.

“There’s really unintended consequences for the smaller players if you take a ‘one size fits all’ approach here,” said Laura Bisesto, global head of policy, privacy and regulatory compliance for Nextdoor.

Many small to mid-sized platforms operate on a business model that relies on content moderation, Bisesto explained. For example, Reddit hosts thousands of active forums that are each dedicated to a stated topic, and consumers join specific forums for the purpose of seeing content related to those topics.

Similarly, Bisesto claimed that Nextdoor’s proximity-based content curation is what makes the platform competitive.

“We want to make sure you’re seeing relevant, very hyper-local content that’s very timely as well,” she said. “It’s really important to us to be able to continue to use algorithms to provide useful content that’s relevant, and any narrowing of Section 230 could really impede that ability.”

Algorithmic organization is also crucial for large platforms that host a broad range of content, said Ginger Zhe Jin, a professor of economics at the University of Maryland. The sheer volume of content on platforms such as YouTube — which sees 500 hours of new video uploaded each minute — would make it “impossible for consumers to choose and consume without an algorithm to sort and list.”

Without Section 230, some companies’ platforms might choose to forgo the use of algorithms altogether, which Jin argued would “undermine the viability of the internet businesses themselves.”

The alternative would be for companies to broadly remove any content that could potentially generate controversy or be misinterpreted.

“Either way, we’re going to see maybe less content creation and less content consumption,” Jin said. “This would be a dire situation, in my opinion, and would reduce the economic benefits the internet has brought to many players.”

Who should be updating Section 230?

In February, the Section 230 debate finally reached the Supreme Court in a long-awaited case centered around intermediary liability. But some industry experts — and even multiple Supreme Court justices — have cast doubt on whether the court is the right venue for altering the foundational internet law.

Bisesto argued that the question should be left to Congress. “They drafted the law, and I think if it needs to be changed, they should be the ones to look at it,” she said.

However, she expressed skepticism about whether lawmakers would be able to reach a consensus, highlighting the “fundamental disagreement” between the general Republican aim of leaving more content up and Democratic aim of taking more content down.

If the Supreme Court refrains from major changes, “pressure will increase for Congress to do something as the 50 different states are passing different statutes on content moderation,” said Sarah Oh Lam, a senior fellow at the Technology Policy Institute.

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