Three top Democratic senators added to the stack of proposed Section 230 reforms Friday, introducing their own bill that creates narrow carve-outs for a range of online harms, dramatically limits the scope of behaviors that Section 230 covers and takes aim at illicit activity that online platforms directly profit from.
The so-called SAFE TECH Act was introduced Friday by Sens. Mark Warner, Mazie Hirono and Amy Klobuchar. Under the bill, online platforms would not be able to claim Section 230 immunity for alleged violations of federal or state civil rights laws, antitrust laws, cyberstalking laws, human rights laws or civil actions regarding a wrongful death. The law would strip companies of immunity for any speech they were paid to carry, such as ads or marketplace listings, and it would make clear that Section 230 does not shield companies from complying with court orders.
In addition to the specific carve-outs it includes, the SAFE TECH Act attempts to limit Section 230 more broadly, so that it would be applied only to actual speech, not all bad behavior online: for example, illegal gun sales. To achieve this, the bill makes a subtle but meaningful tweak to the part of the law that's often referred to as the "26 words that created the internet."
As currently written, that part of the law reads: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Under the SAFE TECH Act, the word "information" would be swapped out for the word "speech," narrowing the law and potentially erasing liability protections for a range of other illicit information-sharing that happens on online platforms.
Tech giants including Facebook and Twitter have recently signaled openness to some Section 230 changes. Facebook has even gone so far as to place ads saying it welcomes regulation. But both companies' proposals tend to advocate for enhanced disclosure about content moderation and cross-industry collaboration, changes that would be relatively simple for their large businesses to pull off. The SAFE TECH Act goes much further, potentially opening up both big and small tech platforms to lawsuits they've previously been able to dismiss in short order.
During the drafting process, Warner, Hirono and Klobuchar's staff consulted with civil rights groups like Color of Change and Muslim Advocates, as well as experts in online harms, including University of Miami School of Law professor Mary Anne Franks and University of Virginia law professor Danielle Citron, who together run the Cyber Civil Rights Initiative.
Franks and Citron said they were particularly vocal about limiting Section 230 protections to speech, not all information on the internet. "For a long time I've said one of the major problems with Section 230 is it's way too broad in what it considers to be protected," Franks said, pointing to the case Daniel v. Armslist, in which a man whose wife had already filed a restraining order was able to illegally buy a gun on Armslist, which he then used to kill his wife and two others. Armslist successfully claimed immunity under Section 230.
"This case has nothing to do with speech. It has to do with the sale of guns," Citron said. Revising the law to specify that it pertains only to speech could stop that kind of behavior from also being protected, she argues.
The legislation also targets ads and other paid content, potentially making the platforms liable for harmful material from which they make money. It would discourage platforms from, say, serving up ads for fraudulent products or scams, and it would clarify that platforms can be held responsible for facilitating any ads that violate civil rights statutes.
Olivier Sylvain, a professor of law at Fordham University who also consulted on the bill, said Section 230 as written makes it difficult for plaintiffs to allege that platforms are responsible for serving ads in ways that could violate civil rights laws. One prominent example: when Facebook allowed advertisers to exclude users by race. Facebook settled a suit filed by civil rights advocates and has since made a slew of changes to prevent illegal discrimination in advertising. But Sylvain said the barriers to those kinds of suits are still too high, and they often don't get to the discovery phase.
Under the new legislation, Sylvain said, "Facebook and other intermediaries would still be able to litigate the question of whether or not they are violating" civil rights laws. "What you have under Section 230 is an immunity that never gets us to the question of whether they are responsible," he added.
Citron and Franks underscored this point: that removing these liability protections doesn't immediately mean online platforms will be found liable. "You've got to prove the crime," Citron said.
Still, both she and Franks have reservations about taking a piecemeal approach to Section 230 reform and creating exemptions for specific types of wrongdoing. That, Franks argues, risks creating a "hierarchy of harms." It also creates an unwieldy and complicated law that Franks worries could be used by tech companies and Section 230 absolutists to dismiss the bill altogether. "To critics, I worry it's going to look like death by 1,000 cuts," Franks said, though she stressed that she is supportive of the bill.
The SAFE TECH Act is only one in a slew of proposals certain to come from lawmakers this year as they try to hammer out a reform that could make it through both chambers of Congress. But it sets the tone for the conversation Democrats want to have as they assume power in the Senate, leaving behind all mention of anti-conservative bias and focusing on Section 230's impact on human rights.
"Section 230 has provided a 'Get Out of Jail Free' card to the largest platform companies even as their sites are used by scam artists, harassers and violent extremists to cause damage and injury," Warner said in a statement. "This bill doesn't interfere with free speech — it's about allowing these platforms to finally be held accountable for harmful, often criminal behavior enabled by their platforms to which they have turned a blind eye for too long."