Congress considers blowing up internet law

Internet platforms’ liability shield Section 230 faced another round of attack at a Senate Commerce Committee hearing on Wednesday, this time with two distinct undercurrents complicating the conversation. One was an unprecedented wave of ongoing legal challenges to the law’s scope, and the second was a heightened bipartisan concern over government censorship.

“Section 230 is not one of the Ten Commandments,” Sen. Brian Schatz (D-HI) said in his opening remarks. “This idea that we can’t touch it, otherwise internet freedom incinerates, is preposterous.” Sens. Dick Durbin (D-IL) and Lindsey Graham (R-SC) have introduced a bill to sunset Section 230 entirely just as the law turned 30 years old, while other proposals seek to narrow its scope.

Section 230 protects social media platforms, newspaper comment sections, and other online forums from being held liable for content their users post, and protects platforms if they choose to limit or remove that content. It’s foundational to many online services, but critics believe its protections are too sprawling and outdated for massively successful Big Tech companies. Debate in this hearing mostly centered on two issues: harm to children and alleged over-policing of conservative content.

The backdrop was a recent trial in Los Angeles where jurors are now deliberating whether Instagram and YouTube were designed in ways that harmed a young plaintiff, and whether certain design decisions fall outside of Section 230’s protections. Matthew Bergman, whose Social Media Victims Law Center has led the charge in this product liability model of social media litigation, testified before the committee with parents sitting behind him holding photos of their children who died after allegedly facing online harms.

Bergman said he does not support a full repeal of Section 230, but that while product liability litigation is playing out in court, Congress can help their cause by clarifying the law isn’t intended to protect platforms’ design decisions. Some lawmakers asked whether new laws were needed for families like Bergman’s clients to prevail, or if cases like his showed the courts could work it out under existing law. Bergman said that if they wait for the courts to decide, “more kids are going to die.”

Another throughline of the hearing was a broad awareness of the dangers of government censorship and the potential to chill speech online, including through coercive threats or jawboning. Schatz praised the leadership of committee chair Ted Cruz (R-TX), who attacked the Biden administration for jawboning but also criticized Federal Communications Commission Chair Brendan Carr’s threats to broadcasters and proposed legislation to address censorship. And Schatz said he was concerned by the Biden administration’s approach to disinformation about the covid-19 pandemic, which included urging social media companies to remove posts spreading it. “It’s no longer theoretical that the door swings both ways in Washington, and this is going to bite us all in the butt and we have to fix it,” he said.

Cruz disagrees with colleagues who want to repeal Section 230 entirely, believing it would incentivize tech platforms “to engage in more censorship to protect themselves from litigation.” Still, he said, “we should consider whether reform of Section 230 is needed to encourage more speech online and stop Big Tech censorship.”

Tensions flared when Sen. Eric Schmitt (R-MO) squared off with one witness, Stanford Law School director of platform regulation Daphne Keller. In his prior role as attorney general of Missouri, Schmitt unsuccessfully sued the Biden administration for its alleged pressuring of social media companies over covid and election disinformation. Schmitt took aim at Keller over her connection to Stanford, whose Internet Observatory was effectively dismantled after facing persistent attacks from the right over its work to identify election misinformation.

Earlier in the hearing, Keller said she “didn’t love” the pressure exhibited by Biden administration officials, but that the suit had failed to turn up evidence the government caused platforms to remove posts. Keller said that resulted in a “problematic” Supreme Court ruling that will make it harder for “the real victims of jawboning in the future” to get into court. But she also said the current administration, including actions from Carr, has helped usher in an era of “jawboning that is unprecedented in my lifetime.”

Keller disputed, however, that the Stanford Internet Observatory had a “role with the Biden administration” to flag content that “didn’t line up with the Biden administration’s view,” as Schmitt claimed. She said her colleagues were “exercising their First Amendment rights to go talk to the government and say what they thought should happen.”

When Keller added she wasn’t involved in the conversations between her colleagues and the Biden administration, Schmitt retorted, “You can read all about it in Missouri v. Biden, the lawsuit that went to the Supreme Court.”

“The one you lost?” Keller shot back. (Schmitt clarified it was sent back to the lower court.)

Some witnesses proposed alternatives to removing or changing Section 230. Knight First Amendment Institute policy director Nadine Farid Johnson suggested passing privacy protections, adding interoperability requirements for social networks, and expanding researchers’ access to platforms, saying this could keep companies from using personal data to hook users and offer more insight into how the platforms work.

The hearing briefly dealt with the new regulatory questions raised by Silicon Valley’s latest focus: generative AI. Americans for Responsible Innovation President Brad Carson said Section 230 should not protect AI outputs, and warned against preempting AI laws that could rein in a fast-growing industry — criticizing a policy supported by some Republicans, including Cruz. Cruz also brought up the Take It Down Act, a law that requires platforms to remove reported nonconsensual intimate images, whether real or AI-generated, as an example of “targeted legislation” that avoids amending Section 230.

No matter how much pressure Congress puts on platforms to add guardrails, though, Cruz acknowledged kids will look for ways around them. After taking away his then-14-year-old daughter’s phone as a punishment, he recalled during the hearing, his wife got an email from Verizon “that didn’t make any sense.” The daughter soon confessed to removing the SIM card from her phone before handing it over, and using it in a burner phone. “I was both annoyed and really proud at the same time,” Cruz said. “It does show just how completely outmatched parents are with trying to keep up with teenagers with these issues.”