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The first big plan to change Section 230 in the Biden era is out. In a new bill, Senate Democrats Mark Warner (D-VA), Mazie Hirono (D-HI), and Amy Klobuchar (D-MN) propose major changes to Section 230 of the Communications Decency Act. These changes would have a big effect on the 1996 law that is often credited with creating the modern internet.
Section 230 is a legal shield that protects websites like Facebook and TikTok, as well as Amazon’s reviews and comments sections, from the user-generated content they host. The new proposed law, called the SAFE TECH Act, would change how this works in a few different ways.
First, it would change the core language of Section 230, which is already a very short piece of language, so any change would be a big one. With the new wording, Section 230 would no longer protect people when payments are involved.
That may not sound like much, but it could make a huge difference. In a tweet about the bill, Sen. Warner called online ads “a key vector for all kinds of frauds and scams.” The goal here is ostensibly to stop people from abusing advertising platforms. But the way the law is written now, it’s possible that many other paid services, like Substack, Patreon, and other paid online content, as well as web hosting, could be affected.
“A good lawyer could argue that this applies to a wide range of arrangements that go far beyond paid ads,” says Jeff Kosseff, a professor of cybersecurity law at the U.S. TechCrunch spoke with the author of a book about Section 230 of the U.S. Naval Academy. “Platforms take money from a lot of different people in order to make speech “available” to the public. The bill doesn’t limit the exception to cases where platforms accept payments from the speaker.”
Internet companies big and small depend on Section 230 protections to run, but some of them might have to rethink their businesses if the rules in the new bill become law. Sen. Ron Wyden (D-OR), who was one of the original authors of Section 230, said that the new bill has some good ideas, but he warned strongly about the bad things that could happen because of it.
“Unfortunately, as written, it would destroy every part of the open internet and do a lot of damage to online speech,” Wyden told TechCrunch, comparing the bill to a full repeal of the law with a bunch of new exceptions that make things even more confusing.
“Making all business relationships liable would force web hosts, cloud storage providers, and even paid email services to get rid of any speech that could be seen as controversial,” Wyden said.
Evan Greer, who is the director of Fight for the Future, agreed that the bill has good intentions, but he also had the same worries. Greer said, “Unfortunately, as written, this bill would have huge unintended effects on human rights and freedom of speech.”
“It makes a big exception in Section 230 that affects not only advertising but also almost all paid services, like web hosting and [content delivery networks], as well as small services like Patreon, Bandcamp, and Etsy.”
Given that the bill focuses on advertising and situations where a company has taken money, it might be both too broad and too narrow to be a good way to change things. Online advertising, especially political advertising, has become a hot topic in recent discussions about cracking down on platforms. However, the vast majority of violent conspiracies, misinformation, and organized hate come from organic content, not paid or promoted content. It also doesn’t talk about the role of algorithms, which is one of the main points of a narrow proposal to change Section 230 from Reps. Anna Eshoo (D-CA) and Tom Malinowski (D-NJ).
The other part of the SAFE TECH Act, which has support from groups like the Anti-Defamation League, the Center for Countering Digital Hate, and Color of Change, does try to fix some of these problems. By adding Section 230, the new bill would give internet companies more civil liability in some cases. This would allow victims of cyberstalking, targeted harassment, discrimination, and wrongful death to sue these companies instead of blocking these kinds of lawsuits outright.
The SAFE TECH Act would also make an exception that would let people ask for court orders when an internet company’s handling of content it hosts could cause “irreparable harm.” It would also let people sue American internet companies in U.S. courts for violating human rights overseas.
Warner said in a press release that the bill was meant to bring the law from 1996 up to date with the needs of today:
Warner said, “A law that was meant to encourage service providers to make tools and policies to help with effective moderation has instead given online providers broad immunity, even when they don’t do anything to stop people from using their products and services in obvious and repeated ways to hurt others.”
There are a lot of ideas for how to change Section 230. There is the bipartisan PACT Act from Senators Brian Schatz (D-HI) and John Thune (R-SD), which focuses on moderation and transparency and gives companies less protection from federal and state regulators. There is also the EARN IT Act from Senators Lindsey Graham (R-SC) and Richard Blumenthal (D-CT), which 230 internet freedom advocates and defenders say is unconstitutional, too broad, and bad for the internet.
Since there are already so many ideas for changing Section 230, it’s not a sure thing that a bill like the SAFE TECH Act will win. The only thing we know for sure is that we’ll hear a lot more about the tiny piece of law that has huge effects on the internet today.
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