Jun 25, 2020 - Technology

Weakening tech's liability shield builds bipartisan momentum

An illustration of gavels in front of a computer.

Illustration: Sarah Grillo/Axios

Congress' efforts to revise the legal shield that protects online platforms from lawsuits over user posts and content moderation entered a new phase this week, as members of both parties pushed new and existing remedies for their grievances.

The state of play: For a while, this debate looked to be splintering along partisan lines, with President Trump calling for its repeal on Twitter and claiming it lets tech companies censor conservatives. But changing the law will depend on winning support from both sides of the aisle.

Driving the news: This week has seen several instances of Republicans and Democrats pushing to soften or add conditions to the legal protections online platforms have under Section 230 of the Communications Decency Act of 1996.

  • Sens. Brian Schatz (D-Hawaii) and John Thune (R-S.D.) teamed up Wednesday to introduce a measure creating a federal civil law carveout so platforms can't use Section 230 as a defense in cases brought by the Justice Department. Their "PACT Act" would also force platforms to lay out their content moderation policies and let users appeal takedowns, account bans and other moderation decisions.
  • On the Senate Judiciary Committee's agenda Thursday is a possible vote on another effort to change Section 230, the EARN IT Act. (Next week is more likely, due to a procedural quirk in how the panel considers legislation, but it appears to be moving forward regardless.) The bipartisan bill threatens online platforms with losing their Section 230 immunity if they fail to meet government-set standards for preventing child sexual exploitation.
  • Members of the House Energy and Commerce panel from both parties called for updating Section 230 during a Wednesday hearing. Top E&C Republican Greg Walden, according to his opening statement, is working on legislation he hopes will be bipartisan that would amend the law to impose moderation transparency requirements on companies making more than $1 billion in annual revenue.

Context: Tinkering with Section 230 is one of the few levers that lawmakers are willing to grasp to change the behavior of Silicon Valley's giant companies.

  • Republicans, including Trump, want companies like Facebook and Twitter to ease up on action against conservatives' accounts. Democrats, including Nancy Pelosi and Joe Biden, are pushing tech to take a firmer hand on curbing misinformation and hate speech.
  • For a time, those divergent goals looked likely to doom efforts to pass any changes to 230. But the overlap between the parties' views on the law now appears to be growing.

What they're saying: "It has become clear that reform is necessary if we want to stem the tide of disinformation rolling over our country," Democratic Rep. Mike Doyle, chair of the E&C communications subcommittee, said at the hearing.

  • "Section 230 protects business models that generate profits off scams, fake news, fake reviews, and unsafe, counterfeit, and stolen products," said fellow Democrat Jan Schakowsky, who chairs E&C's consumer protection subcommittee. "Since both courts and industry refuse to change, Congress must act."

The other side: Sen. Ron Wyden, who co-authored Section 230 while still in the House, urged caution in any effort to update the law during a virtual event Wednesday.

  • "I think it’s important to make sure that any changes in the law we wrote do not target constitutionally protected speech [and] that anything done does not in any way discourage moderation by internet services," he said.

The bottom line: Rewriting decades of settled law around online speech still looks unlikely — but a little bit less so.

Editor's note: This story has been corrected to state that Rep. Greg Walden is working on the transparency legislation, not Rep. Susan Brooks, who was reading Walden's opening statement on his behalf at the hearing.

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