Democrats’ Section 230 Bill Could ‘Devastate’ the Internet ⇥ gizmodo.com

One more policy-related post for a hat trick today, and then I promise I will link to something lighter.

There are several recommendations at the beginning of that NYU report I previously linked to. One of them is probably familiar to anyone who has read internet policy discussions for the past, say, three or four years:

Work with Congress to update Section 230. The controversial law should be amended so that its liability shield is conditional, based on social media companies’ acceptance of a range of new responsibilities related to policing content. One of the new platform obligations could be ensuring that algorithms involved in content ranking and recommendation not favor sensationalistic or unreliable material in pursuit of user engagement.

Well, it turns out that Senator Mark Warner introduced a new bill today, cosponsored by Sens. Mazie Hirono and Amy Klobuchar, called the SAFE TECH Act (PDF). Here’s a pause where you can try to work out what that acronym stands for.

Ready?

It’s the Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act. Nice try, Mark, but it’s no “USA PATRIOT Act”.

The impression given by the press release is that this legislation is merely a minor revision of Section 230 of the Communications Decency Act:

These changes to Section 230 do not guarantee that platforms will be held liable in all, or even most, cases. Proposed changes do not subject platforms to strict liability; and the current legal standards for plaintiffs still present steep obstacles. Rather, these reforms ensure that victims have an opportunity to raise claims without Section 230 serving as a categorical bar to their efforts to seek legal redress for harms they suffer – even when directly enabled by a platform’s actions or design.

But according to the legal experts that Dell Cameron of Gizmodo spoke with, these changes would be catastrophic:

“The ‘payment’ language appears to apply to more than just advertisements. There are a number of services, such as website hosting, for which service providers accept payment to make speech available,” said Jeff Kosseff, a cybersecurity law professor and author of the Section 230 book, The Twenty-Six Words That Created the Internet.

“Creating liability for all commercial relationships would cause web hosts, cloud storage providers and even paid email services to purge their networks of any controversial speech,” [Sen. Ron] Wyden added. “This bill would have the same effect as a full repeal of 230, but cause vastly more uncertainty and confusion, thanks to the tangle of new exceptions.”

Cathy Gellis, Techdirt:

But it’s the first part that nukes the entire Internet from orbit because it prohibits any site from in any way acquiring any money in any way to subsidize their existence as a platform others can use. That’s what “accepted payment to make the speech available” means. It doesn’t care if the platform actually earns a profit, or runs at a loss. It doesn’t care if it’s even a commercial venture out to make money in the first place. It doesn’t care how big or small it is. It doesn’t even care how the site acquired money so that it could exist to enable others’ expression. Wikipedia, for instance, is subsidized by donors, who provide “payment” so that Wikipedia can exist to make its users’ speech available. But if this bill should pass, then no more Section 230 protection for that site, or any other site that didn’t have an infinite pot of money at the outset to fund it forever. Any site that wants to be economically sustainable, or even simply recoup even some of the costs of operation – let alone actually profit – would have to do so without the benefit of Section 230 if this bill were to pass.

The thing about Section 230 is that it is very easy to argue that it should be modified, but nearly impossible to find a way to change it so as to avoid toppling the Jenga tower that is the web. This bill is a well-intentioned but poor attempt that, if passed as-is, would backfire.