Safe Tech Act: Section 230 Reform and Potential Consequences
Biden Administration's First Major Section 230 Reform Proposal
The initial significant proposal for reforming Section 230 during the Biden administration has been unveiled. Senators Mark Warner (D-VA), Mazie Hirono (D-HI), and Amy Klobuchar (D-MN) have jointly introduced a new bill aimed at modifying Section 230 of the Communications Decency Act.
Understanding Section 230
Section 230 currently serves as a legal safeguard for internet companies. This protection shields them from liability related to content generated by their users, encompassing platforms like Facebook, TikTok, Amazon reviews, and comment sections.
The SAFE TECH Act: Proposed Changes
The proposed legislation, formally known as the SAFE TECH Act, seeks to alter the existing framework in several key ways. It intends to fundamentally revise the core wording of Section 230.
Given the brevity of the original Section 230 language, even a minor adjustment carries substantial implications. A central change involves removing protections when financial transactions are involved.
The current wording of Section 230 is as follows:
The SAFE TECH Act proposes the following modifications:
Potential Impact of the Changes
Although seemingly limited, this alteration could have a widespread effect. Senator Warner highlighted online advertisements as “a key vector for frauds and scams” in a promotional tweet, indicating a focus on curbing platform abuses within the advertising sphere.
However, the current language potentially extends to various other paid services. This could impact platforms like Substack, Patreon, and other premium content providers, as well as web hosting services.
Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy and author of a book on Section 230, explained to TechCrunch, “A good lawyer could argue that this covers many different types of arrangements that go far beyond paid advertisements.” He further noted that platforms routinely accept payments from numerous parties when making speech accessible to the public.
Concerns and Criticisms
Both large and small internet companies depend on the protections afforded by Section 230. If the proposed rules are enacted, many may need to re-evaluate their business models.
Senator Ron Wyden (D-OR), an original author of Section 230, acknowledged the bill’s positive intentions but cautioned against potential unintended consequences. He warned that the bill could “devastate every part of the open internet” and cause significant damage to online speech.
Wyden likened the bill to a complete repeal of Section 230, complicated by a series of new exceptions. He stated that creating liability for all commercial relationships could lead web hosts, cloud storage providers, and even paid email services to remove any potentially controversial content.
Evan Greer, Director of Fight for the Future, shared similar concerns, stating the bill, as currently written, would have “enormous unintended consequences for human rights and freedom of expression.”
Scope and Limitations of the Bill
Greer pointed out that the bill creates a significant exception in Section 230, impacting not only advertising but also paid services like web hosting, content delivery networks, and smaller platforms such as Patreon, Bandcamp, and Etsy.
The bill’s focus on advertising and instances involving payment acceptance may render it both overly broad and insufficiently targeted for effective reform. While online advertising, particularly political advertising, is a prominent topic in discussions about platform regulation, the majority of harmful content – including violent conspiracies, misinformation, and organized hate – originates from organic, unpaid sources.
Furthermore, the bill does not address the role of algorithms, which is a central focus of a separate, more narrowly defined Section 230 reform proposal in the House, spearheaded by Representatives Anna Eshoo (D-CA) and Tom Malinowski (D-NJ).
Amendments to Existing Regulations
A significant portion of the SAFE TECH Act garnered support from various civil rights groups, including the Anti-Defamation League, the Center for Countering Digital Hate, and Color of Change. This aspect of the legislation aims to rectify certain existing problems.
Specifically, the bill proposes amendments to Section 230, potentially increasing the civil responsibility of internet companies in specific scenarios. This would grant individuals affected by cyberstalking, harassment, discrimination, and wrongful death the ability to pursue legal action against these companies, rather than having such suits automatically dismissed.
Expanding Legal Recourse
The SAFE TECH Act also introduces an exception allowing individuals to petition courts for orders when a company’s content management practices could lead to “irreparable harm.” Furthermore, it would permit lawsuits within U.S. courts against American internet firms for human rights violations occurring internationally.
Senator Mark Warner articulated the bill’s intent as a modernization of the 1996 legislation to address contemporary challenges.
Rationale for Reform
Warner stated that the original law, intended to incentivize the development of moderation tools and policies, has inadvertently provided extensive immunity to online platforms. This immunity persists even when companies fail to address predictable and repeated misuse of their services that results in harm.
Section 230 reform is a topic with numerous proposed solutions. These include the bipartisan PACT Act, spearheaded by Senators Brian Schatz and John Thune, which emphasizes moderation transparency and reduced protection for companies facing regulatory scrutiny.
Competing Legislative Proposals
Another proposal, the EARN IT Act, championed by Senators Lindsey Graham and Richard Blumenthal, is viewed by Section 230 advocates and internet freedom proponents as potentially unconstitutional and excessively broad. It is considered a potentially damaging piece of legislation.
Given the multitude of existing Section 230 reform proposals, the success of the SAFE TECH Act is not assured. However, continued discussion surrounding this pivotal law, with its substantial implications for the internet, is inevitable.
