Jul 28, 2020 - Technology

Tech liability fight comes back into focus

An illustration of a dome over a screen

Illustration: Aïda Amer/Axios

The debate in Washington is heating up again this week over whether and how to update Section 230 of the Communications Decency Act, which immunizes online platforms against lawsuits over moderation practices and user-posted content.

Why it matters: Chipping away at the shield may be a more potent threat to the tech industry than stepped-up antitrust enforcement. It can be done in one fell legislative swoop — as happened two years ago — rather than requiring lengthy, uncertain court proceedings.

Driving the news: The Senate Commerce internet and communications subcommittee on Tuesday will hold a hearing on a bipartisan bill to add transparency requirements to Section 230. Witnesses include former Rep. Chris Cox, who co-wrote the law in the mid-1990s with Sen. Ron Wyden.

  • GOP Sen. Josh Hawley, a vocal Section 230 critic, unveiled a new bill on Tuesday to take away immunity from tech companies that track users around the web and target ads at them based on their activity.
  • A Commerce Department agency Monday asked the Federal Communications Commission to start the process of writing regulations to limit the circumstances in which Section 230 protections apply. The Commerce petition stems from President Trump's push to narrow Section 230 by executive order.
  • Tech trade group the Internet Association on Monday issued findings after reviewing more than 500 lawsuits in which Section 230 was used as a defense. In most of those cases, judges didn't rely on Section 230 in making a ruling, IA found.

Between the lines: IA, which is also sending its deputy general counsel to the Senate hearing, is suggesting in its review that Section 230 doesn’t offer platforms blanket immunity, but protections that the courts evaluate on a case-by-case basis.

  • That’s a counter to claims from Attorney General Bill Barr and others, who maintain that Section 230 lets huge platforms get away with censoring political opponents (a charge for which there’s no clear evidence).

Be smart: The fight over Section 230 is less about its merit and efficacy as a legal defense and more about finding a way to hold tech accountable for perceived failures.

Our thought bubble: Legislation taking aim at Section 230 is less of a moonshot than seeking to break up tech giants. But it still may be a tall order to move any major tech legislation before the November election.

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