The latest legislative proposal to hold social media companies accountable for harmful content on their platforms is generating a split reaction from civil liberties groups and legal experts.
The bill, announced by a trio of Senate Democrats on Friday, would amend a 1996 law that protects online companies from being sued over content that third parties post to their sites by making exceptions for content related to stalking, harassment, or even wrongful death.
The law, known as Section 230 of the Communications Decency Act, has been credited with nurturing the meteoric rise of Silicon Valley in the past two decades. But as companies such as Facebook and Google have grown more powerful, the law has come under scrutiny.
“When Section 230 was enacted, the internet looked very different than it does today,” said Sen. Mark Warner, D-Va., one of the bill’s authors.
Warner said the law was meant to encourage websites “to develop tools and policies to support effective moderation.” Instead it inoculated companies “even when they do nothing to address foreseeable, obvious and repeated misuse of their products and services to cause harm.”
The proposal, co-sponsored by Democratic Sens. Mazie K. Hirono of Hawaii and Amy Klobuchar of Minnesota, is the first that seeks to change the terms of Section 230 since the deadly riot at the Capitol last month by a mob of former President Donald Trump’s supporters.
Democrats outraged by the riot say social media companies should lose legal protections granted by Section 230 because Trump and his allies incited the violence via the companies’ platforms, and groups whose members were present at the riot used the websites to organize.
Loss of life
The senators’ proposal would allow users to sue a company in instances where the company has refused to remove certain types of harmful content from their platform, and the result is a loss of life. Five people, including a Capitol Police officer, died as a result of the riot.
“How [technology companies] operate has a real-life effect on the safety and civil rights of Americans and people around the world, as well as our democracy,” Klobuchar said in a statement. “Holding these platforms accountable for ads and content that can lead to real-world harm is critical, and this legislation will do just that.”
The bill won the praise of prominent civil rights groups including the NAACP and the Anti-Defamation League. Lisa Cylar Barrett, director of policy at the NAACP’s Legal Defense and Educational Fund, said the proposal would help to address “the growing and dangerous combination of misinformation and discrimination.”
“These platforms are being used to violate the civil rights of Black users and other users of color by serving as virtually-unchecked homes for hateful content and in areas such as housing and employment discrimination through the targeting and limiting of who can see certain advertisements,” Barrett said in a statement.
But other advocates are opposed to the bill. Evan Greer, the deputy director of the digital and civil rights group Fight for the Future, said her organization will lobby against the proposal out of concern that it could hamper freedom of expression and hurt marginalized communities.
Specifically, Greer said, a carve-out in the bill meant to address online advertising could be interpreted to apply to any paid service, endangering websites like Etsy, Bandcamp or Patreon.
Like the advocacy community, legal experts are also divided. Olivier Sylvain, a professor of communications law at Fordham University, said in a statement that the bill creates “a new and necessary incentive” for companies to be “more mindful of the social impacts of their services.”
But others said the bill’s language is too broad and could have unintended consequences.
“It is well-intentioned but the drafting lacks precision and courts could read it as removing [Section 230] protections from nearly every platform on the internet,” Jeff Kosseff, a law professor at the U.S. Naval Academy who wrote a book on Section 230, said in a post on Twitter.
Warner, Hirono and Klobuchar also face resistance from some fellow Democrats. Sen. Ron Wyden, D-Ore., who helped write Section 230, praised the bill’s intention but warned that it would devastate every part of the open internet and cause massive collateral damage to online speech.”
“This bill would have the same effect as a full repeal of [Section 230], but cause vastly more uncertainty and confusion, thanks to the tangle of new exceptions,” Wyden told The Washington Post.