GoKawiilis a senior policy reporter at The Verge, covering the intersection of Silicon Valley and Capitol Hill. She spent 5 years covering tech policy at CNBC, writing about antitrust, privacy, and content moderation reform.
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 It’s foundational to many online services, but critics believe its protections are too sprawling and outdated for massively successful Big Tech companies.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.”
“It’s no longer theoretical that the door swings both ways in Washington”
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.
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