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Effort to crack Big Tech’s legal shield gains bipartisan momentum

Facebook and Twitter may face regulation of their content decisions under new bills put forth by lawmakers of both parties

Bipartisan support for a pair of Senate bills that would force social media companies such as Facebook and Twitter to change their content moderation policies could mark a turning point in Washington’s ongoing efforts to maintain greater control over Silicon Valley.

Both Republicans and Democrats have frequently criticized a landmark 1996 law, Section 230 of the Communications Decency Act, that protects online companies from being sued for third-party content posted on their sites. Section 230 is credited with fostering the technology sector’s rapid growth in the past two decades, even as some have argued it gives large companies too much power.

Until recently, however, those criticisms have largely reflected partisan gripes, with Republicans, including President Donald Trump, accusing Facebook and Twitter of censoring conservatives and Democrats such as Speaker Nancy Pelosi complaining the companies have failed to effectively rein in disinformation and violent user content. As a result, bipartisan proposals have been elusive.

But with one bipartisan bill, authored by Senate Judiciary Chairman Lindsey Graham, R-S.C., expected to win committee approval this week and another benefiting from the support of Majority Whip John Thune, R-S.D., changes to Section 230 seem more likely than ever.

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“I think there’s a very good chance Section 230 will be changed in the next few years,” Jeff Kosseff, who wrote a book on the law called “The Twenty-Six Words That Created the Internet,” told CQ Roll Call.

Kosseff said neither Graham’s bill — which has six Democratic co-sponsors, including Dianne Feinstein of California, the Judiciary Committee’s ranking member — nor Thune’s, which is co-sponsored by Sen. Brian Schatz, D-Hawaii, has emerged as more likely to pass than the other, but both are serious.

“I don’t think there’s a clear leader in terms of what changes to Section 230 will look like,” Kosseff said, noting the differences between the bills. “It’s noteworthy that both of these bills are bipartisan.”

[Democrats increase pressure on Facebook over content policies and Trump posts]

Content moderation judged

Graham’s bill, first introduced in March with Sen. Richard Blumenthal, D-Conn., seeks to crack down on the spread of child pornography and other illegal content online by revoking automatic Section 230 protections for online companies and requiring them to “earn” them back through content moderation.

The legislation would create a national commission tasked with recommending best practices for content moderation, which technology companies would abide by to keep their immunity. The commission would include the attorney general and secretary of Homeland Security along with other government officials and private sector representatives.

“Tech companies have an extraordinary special safeguard against legal liability, but that unique protection comes with a responsibility,” said Blumenthal. “Companies that fail to comport with basic standards that protect children from exploitation have betrayed the public trust granted them by this special exemption.”

The Judiciary Committee is expected to advance the Graham bill at a markup on Thursday.

Thune’s bill would take a different approach by allowing companies to keep their immunity under Section 230 but requiring them to post their content moderation practices online and explain what content is removed. It would also require them to be more responsive to user complaints and allow federal regulators and state governments more leeway when pursuing civil lawsuits against the companies.

[Republicans have questions for Twitter, and they’re not about election meddling]

Thune said the legislation is rooted in the concern that social media companies “are often not transparent and accountable enough to consumers,” but he cautioned against a heavy-handed approach.

“The internet has thrived because of the light-touch approach by which it’s been governed in its relatively short history,” Thune said. “By using that same approach when it comes to Section 230 reform, we can ensure platform users are protected while also holding companies accountable.”

Thune’s bill less sweeping

Kosseff said the narrow approach of Thune’s legislation could help it advance through Congress, while uncertainty about the national commission created by Graham’s bill could be an obstacle.

“The Thune-Schatz bill pretty clearly spells out expectations for platforms and addresses those things in a really tailored way,” Kosseff said. “It’s definitely a less sweeping change.”

Graham spoke favorably about the introduction of Thune’s legislation at a Judiciary Committee markup last week, even as one of his co-sponsors, Sen. Josh Hawley, R-Mo., said it leaves too much of the original Section 230 in place.

“The idea that [technology companies] need to be shielded and protected and babied, I think, is really out of touch with reality,” Hawley told National Journal. “I’d like to see a little bit more concern about the people who don’t have the power, as opposed to the people who have all the power.”

Hawley has introduced his own legislation that would allow members of the public to sue social media companies if those companies violate their own terms of service. The bill would stop companies from “silencing political speech from conservatives without any recourse for users,” Hawley said.

Hawley’s bill has the backing of Sen. Kelly Loeffler, R-Ga., who has introduced her own Section 230 bill that also seeks to address alleged anti-conservative bias. But neither bill has Democratic support.

Bipartisan momentum behind the Graham and Thune proposals is positive, Kosseff said, because it increases the likelihood of changing Section 230 instead of repealing it completely.

“Even though there’s no legislation yet, there are lots of politicians who are sort of offhandedly calling for the repeal of Section 230,” Kosseff said. “My fear is that if we don’t have a serious debate it will get repealed altogether, and I don’t think that would address either side’s concerns.”

Silicon Valley is opposed to both pieces of legislation. NetChoice, an industry group representing Facebook, Twitter and Alphabet, Google’s parent company, has described Graham’s proposal as a threat to the Fourth Amendment, which bars unreasonable searches and seizures, and says Thune’s would only make it more difficult for companies to keep harmful content off their sites.

“By forcing online platforms to reveal details on how they moderate content, the bill gives bad actors a cheat sheet for gaming the very systems designed to protect us from their harmful content,” Carl Szabo, NetChoice’s vice president and general counsel, said in a statement. “We should enable platforms to remove harmful content, not weigh them down with unnecessary regulations.”

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