Sen. Josh Hawley, R-Mo., introduced legislation to remove Section 230 immunity for big tech companies unless they prove to the FTC every two years that content removal decisions are politically neutral. The bill drew concern from House Judiciary Committee ranking member Doug Collins, R-Ga., and House Commerce Committee ranking member Greg Walden, R-Ore. They warned against government regulation of speech.
Section 230
As Congress mulls new regulatory approaches to major tech companies, it might want to look at creating an exemption to Communications Decency Act Section 230 to hold service providers liable for publishing or restricting certain kinds of content, the Congressional Research Service reported. Minus an express exemption, there could be legal questions about new laws imposing liability that might conflict with Section 230 general immunity, CRS said Monday. It said such rules might also have First Amendment issues. It said any move to a comprehensive federal data protection law might need to weigh whether to be prescriptive or outcome-based, the definition of protected information and the role of the FTC or another federal enforcement agency. It said reclassification of ISPs as common carriers could create legal uncertainty about data protection obligations since they no longer would be under FTC jurisdiction. It said antitrust action against such tech companies also would raise complicated legal questions such as market definitions for dynamic technology industries. Since many tech companies provide services for free, demonstrating a monopoly could be difficult, CRS said.
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., wants to avoid altering Communications Decency Act Section 230, he told us. Several key lawmakers are discussing the possibility of amending tech industry immunity from third-party content liability.
Amending Section 230 of the Communications Decency Act to hold tech companies more accountable for false and harmful content is worth “serious consideration,” House Intelligence Committee Chairman Adam Schiff, D-Calif., told reporters Thursday. “If social media companies can’t exercise a proper standard of care when it comes to a whole variety of fraudulent or illicit content, then we have to think about whether that immunity still makes sense.”
Congress has a constitutional duty to ensure antitrust law is working properly within the digital economy, said House Judiciary Committee Chairman Jerry Nadler, D-N.Y., and House Antitrust Subcommittee Chairman David Cicilline, D-R.I., during a hearing Tuesday (see 1906100029). It was the first in a series of tech competition investigation hearings, which ranking member Doug Collins, R-Ga., said he “firmly” supports. Collins said any potential legislation from the probe “should be consistent with keeping the free market free.” Companies “that offer new innovations, better solutions and more consumer benefit at lower prices often become big -- to the benefit of society,” he said.
Google, Microsoft and Yahoo aren’t liable for hosting content posted by known scammers, a key appellate court ruled Friday. Citing Section 230 of the Communications Decency Act, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit sided (in Pacer) with the platforms over a group of 14 locksmiths. The group’s lawsuit claimed the platforms flood search engine results with listings from unlicensed locksmiths to incentivize legitimate locksmiths to pay for preferred listing placement. The platforms aren’t content providers because the information they’re hosting is provided entirely by third parties, the court said, and Section 230 protects computer services from liability. The court is incorrect that the platforms aren’t responsible for the content because they verify scammer locations, said Baldino's Lock & Key’s Mark Baldino. The platforms didn't comment.
Section 230 of the Communications Decency Act should be amended to allow state and local entities to enforce laws against online platforms that profit from sex trafficking and other illegal behavior, the National Association of Attorneys General wrote Congress Thursday. CDA interpretations mean state and local authorities aren’t able to enforce criminal laws against companies that “actively profited from the promotion and facilitation of sex trafficking and crimes against children,” 47 attorneys general wrote. They also cited crimes related to black-market opioid sales, ID theft, deep fakes, election meddling and foreign intrusion. CDA safe harbors mean harmful websites remain “attractive and profitable.” This is the third time state attorneys general have urged Congress to amend CDA language, following requests in 2013 and 2017 (see 1708160023 and 1307250073). AGs are currently unable to fully enforce “their criminal laws against companies that, while not actually performing these unlawful activities, provide platforms that make these activities possible,” NAAG said.
President Donald Trump’s new tool for publicly reporting instances of alleged political bias shows why the tech industry needs Section 230 of the Communications Decency Act, said Sen. Ron Wyden, D-Ore. Trump’s website is a "right-wing effort" to pressure platforms to leave “vile content” online, Wyden said Thursday: Section 230 ensured “that private companies would be able to curate content online, without fear of bogus lawsuits or government interference.” Public Knowledge also blasted Trump’s tool. Senior Counsel John Bergmayer said that with claims of political bias, it “would welcome efforts from the Trump Administration to increase platform competition through the vigorous application of antitrust laws, interoperability initiatives, and similar endeavors.” Internet Association CEO Michael Beckerman disputed that any platforms have ideological bias: “It would make no business sense for companies to stifle the speech of half -- or any significant portion -- their customers.”
Lawmakers, academia and media often mistakenly suggest that big tech is the only group that Section 230 of the Communications Decency Act protects, Electronic Frontier Foundation Civil Liberties Director David Greene wrote Wednesday. The safe harbor protects a wide variety of internet users and publishers like news media, nonprofits, anyone who maintains a website and those who post to classified sites like Craigslist, he said. The ultimate beneficiaries are everyday internet users, “so that we can post things online without having to code it ourselves, and so that we can read and watch content that others create,” he said.
Senate Commerce Committee ranking member Maria Cantwell, D-Wash., and Senate Majority Whip John Thune, R-S.D., will be “very helpful” for striking consensus (see 1904300195) on a privacy bill that can gain the support of a “huge,” bicameral majority, Chairman Roger Wicker, R-Miss., told us. His comment came after a committee hearing with consumer advocates and a top EU data privacy enforcer, who offered legislators advice on legislative specifics.