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Section 230

Senate Judiciary Committee Teases, and Then Pulls, Bills Dramatically Narrowing Section 230 Protections



Senate Judiciary Committee Chairman Lindsey Graham during the December 7 executive committee meeting

January 2, 2021 — When the Senate reconvenes on Sunday at 11:45 a.m., the body will gavel in for the first session of the 117th Congress. All bills not passed as of Friday, January 1, 2021 – the last day Congress was in session – will die.

One of those bills is the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020, or EARN IT Act, S. 3368, introduced in March by Senate Judiciary Committee Chairman Lindsey Graham, R-South Carolina. Among other provisions, the measure would have restricted the liability protection of Section 230 of the Communications Decency Act.

Somewhat obscured amidst the controversy surrounding President Donald Trump veto’s of the Defense Department’s budget over Section 230 were Graham’s maneuverings. He attempted to water down protections for social media companies through the EARN IT Act and through another measure, the Online Content Policy Modernization Act, S. 4632. Bill will die on Sunday.

Last-minute efforts to gut or scale back Section 230

Graham’s measures were more tactical, and in addition to Trump’s unsuccessful broadside. Trump’s veto of the Defense bill was over-riden by the Senate on Friday. The over-ride was one of the last actions of the 116th Congress. It was also the first time a Trump veto had been overturned.

On Thursday, December 7, during an executive session of the Judiciary Committee, Graham nixed a vote on the Online Content Policy Modernization Act., S. 4632, that would have scaled back Section 230 protections even more than the EARN IT Act.

Indeed, online services would be exposed to liability if they remove content outside a limited set of categories.

Graham’s S. 4632 would have removed from Section 230’s liability protections the catch-all phrase “otherwise objectionable content.” He said this phrase has become “a hole in the bill,” which allows social media platforms to censor conservative sources and content.

“If you took that phrase out, it would limit their ability to censor and edit,” said Graham. “That’s what this effort is, to take that out that phrase and replace it with some guidance.”

Criticism and support — but mostly support — for slamming social media

Critics of the EARN IT Act argue it is a misguided attack on internet speech, which would make it harder for online platforms to take common-sense moderation measures and shield only those which agree to confine their moderation policies to a narrowly tailored set of rules, agreed upon by legislators.

“The result of this Amendment would be to disincentivize platforms from removing filth online,” said

Ranking Member Dianne Feinstein, D-California, “Congress should not make it more difficult for social media services to fight disinformation.”

Feinstein said the Graham’s proposed EARN IT Act was premature as it had not had an adequate hearing before the Committee and that regulating Section 230 may be “more complicated” than any of the members suspected.

During the meeting, Sen. Josh Hawley, R-Missouri, introduced an amendment to the Act which would guarantee third-party users implied private rights of action, allowing private parties to bring a lawsuit to court, even though no remedy is explicitly provided in the law.

While Hawley’s proposed amendment did not pass, many agreed guaranteeing third-party users’ private rights of action will be critical to a final congressional revision of Section 230 that may well happen in the 117th Congress.

The majority of committee members maintained that many more hearings will be necessary before proposing reforms to Section 230. At the close of the meeting, Graham withdrew the bill, saying the mission of the legislation was accomplished, in the sense that it got the committee to talk about changes to Section 230.

“There will be work going forward,” said Sen. Richard Blumenthal, D-Connecticut, “but there is a message in this conversation: the days of Section 230 are numbered. There will be reform.”

“The days of non-responsibility of big tech are over” Blumenthal said, adding that “this should not be a partisan issue.”

Debate flares over what constitutes ‘filth’ online

Section 230 grants platforms liability protections for the decisions they make to moderate and remove online speech; platforms are free to decide their own moderation policies however they see fit. Yet there is widespread disagreement about what types of content are worthy of being removed from social media platforms..

“This bill urges tech companies to not sensor ‘inflammatory conservative social media content’”, said Senator Dick Durbin, D-Illinois. “The questions is: How do you define this?”

“What line will be drawn, and where?,” questioned Durbin. “Lawful but awful content, such as that put forth by the proud boys, which is white supremacist, misogynistic, and could incite violence, by nature — are we including this?”

While Durbin strictly opposed the idea of a Section 230 reform allowing hate speech to flourish online, Sen. Ted Cruz, R-Texas, said although he despises “Nazi ideology”, that he does not “want to silence them online.”

What Cruz referred to as an attempt by big tech to silence conservative voices, Sen. Sheldon Whitehouse, D-Rhode Island, called the effort of private companies to intervene in “powerful fraudulent disinformation campaigns” being employed by corporate interests against American citizens.

“To say you have to be fair” to all content, “misstates the question that we’re faced with,” said Whitehouse.

“In certain areas of public debate, there are very wealthy, very powerful special interests that have decided that the way to power in the United States of America is to run deliberate disinformation campaigns against and in their own country,” said Whitehouse, saying that the best example of this is the fossil fuel industry’s politicization of the issue of climate change.

“Now we see a similar disinformation operation run by the billionaires in right-wing media,” he said. “It is provenly false. For a company to be in a position to be able to say, ‘your crooked disinformation campaign has no platform here,’ I think is a legitimate decision on their part.”

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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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