Mark Warner is ready to fight for Section 230 reform

Sen. Mark Warner's SAFE TECH Act, which he introduced with a coalition of powerful Democrats after they won the Senate, has been creating controversy since it was introduced last month. Advocates for Section 230 reform, including prominent civil rights groups, have called it an important first step toward creating equity online. Meanwhile, prominent defenders of the original statute say the Democrats' approach is overly broad and could crush companies that are smaller than Facebook or Google.

Protocol spoke with Warner about why he thinks the SAFE TECH Act is the right approach, how he predicts the Section 230 debate will play out in Congress this year and why he disagrees with his critics.

This interview has been lightly edited and condensed for clarity. It was adapted from a virtual Protocol event with Warner on March 22.

Emily Birnbaum: There's been so much debate in Congress over reforming Section 230, and every lawmaker seems to have their own idea. Why do you think your bill is the best approach?

There are very few things in Washington that seem to unite us these days. But we have, in the case of Section 230 reform, [heard] calls for Section 230 reform or elimination from people that range from Donald Trump to Joe Biden. We've even seen Facebook in the last few months starting to acknowledge that maybe Section 230 reform's time has finally come.

Section 230 was well intentioned at its outset as a tool for this emerging industry of content providers and online platforms who wanted to do a little bit of self-moderation. We've seen that evolve into an almost blanket immunity or "get-out-of-jail-free" card for large online providers who want to do nothing about foreseeable, obvious and repeated misuse of their platforms.

The SAFE TECH Act has been part of an iterative process, where we've been out consulting with interest groups and experts for months and months on end to try to get this right.

Some have said our bill does not go far enough; others have said it goes way too far. Let me make sure I make clear what we do and what we don't do. This legislation does not restrict anyone's right to free speech under Section 230. What I don't want, though, is to have these giant providers continue to use Section 230 as this immunity, a kind of "get-out-of-jail-free" card, where we've seen repeated online abuse, like financial fraud and scamming, done oftentimes by advertisers and paid content providers. I don't want to see the kind of collaboration that takes place amongst extremists, oftentimes violative of existing civil rights laws. I don't want to see the ability to have, where irreparable harm is shown, them getting injunctive relief, as we saw in the Grindr case.

So what we've tried to do with our SAFE TECH Act is the following: say that Section 230 does not give platforms broad immunity against civil rights laws. Section 230 does not give broad immunity against laws that address stalking, cyber stalking or harassment or intimidation of any protected class — again, around civil rights. Section 230 does not give broad immunity against injunctive relief from the court. Section 230 does not give platforms broad immunity against wrongful death actions or suits under the Alien Torts Claim Act. Even Sheryl Sandberg acknowledged Facebook's culpability in the case of Myanmar's military actions against the Rohingya. And Section 230 should not give broad immunity to profit off ads and paid content that causes direct and proximate harm.

Now, we're welcome to have this conversation. We know there's probably not going to be a single Section 230 bill. I think this is legislation that served its time, but 25 years later, needs refreshing and revision, or we will end up with the kind of broad, across-the-board repeal that sometimes both ends of the political spectrum are now calling for.

E.B.: Who from the tech industry did you consult with while you were writing this bill? Who's shaping your thinking from the tech and content side?

I am in regular contact, both my staff and me. As someone who spent longer as an entrepreneur than I have as a senator, [we've consulted with] a host of individuals on the tech side. We've had a great deal of contact with Facebook at the most senior levels through their Facebook government performance team. We've had ongoing conversations, frankly, with Google, although sometimes they chose not to show up at our hearings. It's hard if you don't show up to get that kind of input. My staff has had regular contact with a number of the major platform entities, and we'll continue that dialogue. There's one thing I think no one should be surprised about: Big Tech's access to Congress is pretty much unlimited. These firms have now become the single largest lobbying entities in Washington, so they have their seat at the table.

But here's why I think this legislation is attracting so much attention. Two years ago, three years ago, the civil rights community would have been more in line with the status quo around Section 230. I think the misuse and abuse that's taken place on a lot of these large platforms in a discriminatory fashion, that violates the basic concepts behind our civil rights laws, and to see the broad-based support we have in the civil rights community, has been one of the most major transformations that's taken place in this debate in the last couple of years.

E.B.: Critics have said that small platforms and publishers will be disproportionately harmed by some of these sweeping Section 230 reforms, including those contained within your bill. So did you have an ongoing conversation with some of those smaller platforms before the bill was introduced? Are you open to any changes that would ensure that they are not disproportionately harmed while Facebook just pays more, which they can afford?

Section 230 in the late '90s was then about protecting those entrepreneurial startups. What it has transformed into is a "get-out-of-jail-free" card for the largest companies in the world, to not moderate their content, but frankly, to ignore repeated misuse abuse in a way that we've tried to address.

Issie Lapowsky: Sen. Warner—

No, you asked me a question, let me finish. Let me finish. The question of, "Could there be a way under appropriate circumstances that those entrepreneurial startups get some kind of protection?" That ought to be part of the debate and part of the process.

I.L.: OK, I want to be clear to our audience that obviously we know that Section 230 is not just pertinent to the very large platforms, it's not just a "get-out-of-jail-free" card for very large platforms. It's an important form of defense for a lot of small platforms. So I wanted to make sure that that point is clear.

I want to walk through a few of the criticisms that the SAFE TECH Act has gotten. So here's the first. It's a legal argument that people use to talk about a lot of these bills that create carve-outs for certain types of speech. They say that a lot of that speech is protected by the First Amendment. So if you get rid of Section 230 protection, you are still left with First Amendment protection. And all you've really done is take away that fast track for the companies that would use Section 230 protection in court. Facebook, they have the money and they have the lawyers to mount these First Amendment defenses. The smaller platforms and publishers, by and large, do not. So what do you say to that criticism?

Well, first of all, there have been a number of efforts that have said, "Let's just get rid of Section 230. Let's call the platforms publishers." We don't go at the free speech components of Section 230. In the last 25 years, independent of this whole debate, there have been major reforms, tort reforms, and the ability to bring cases in lawsuits have gotten dramatically harder. And what we have seen with Section 230 is that the courts have expanded this potentially originally good intent so broadly that companies can use this to dismiss suits, before they even get to the pleading stage. We're saying let's take areas, where for the most part which are already illegal such as civil rights law protections, and say Section 230 should not be a conclusion on that. Let's take an area like injunctive relief, where there was already a higher legal standard. You're going to go to the court and show irreparable harm. You should not be able to use Section 230 to say, "Well, we're not even going to look at that to determine whether that irreparable harm exists." I think we've tried to thread this needle in the appropriate way.

I.L.: There's also another part of your bill, though, that deals with affirmative defense requirements. And the idea is basically so defendants couldn't just immediately fast track to the 230 defense to get cases quickly dismissed. And this is something a lot of critics say, effectively, guts the main purpose of Section 230 protections. So tell me a little bit about why you introduced this requirement.

Are you saying that the original intent of Section 230 was to in a sense, wipe away folks' legal rights?

I.L.: Not the intent, but certainly—

But if we're gonna go back to the intent of the legislation, versus the way the courts have so dramatically expanded what was potentially the original intent, I think it's one of the reasons why we're having this debate. And candidly, some policymakers may not be as familiar with the nuance and the differential between First Amendment rights, which we want to stand by and protect, and what we think has been the misuse of this section and the over-expansion of the court's rulings. We want to draw it back in and to make sure that things that are already illegal — like for example, illegal paid scams that take place on a lot of these platforms, I actually think there should be an ability to bring a suit against those kinds of illegal scams. The idea that you can flash your "get-out-of-jail" Section 230 card up front, before you even get to the merits of any of those discussions, I just respectfully think ought to not be the policy of the United States.

I.L.: My understanding of the intent was that this was a bill that was meant to encourage good faith efforts to moderate content, but also protect companies when they get things wrong, when they don't catch all the content or when they take something down that they shouldn't have. And obviously, this was written at a time when the internet—

Can I just ask, are you saying that Section 230 has reinforced good faith intent on moderation? Again, if that's your view of how it's been used by the large platforms, we just have a fundamental disagreement. I think Section 230 has been used and abused by the most powerful companies in the world.

I.L.: I wouldn't—

[They've been allowed] to not act responsibly, and instead it has allowed whether it's abuse of civil rights, abuse of individuals' personal behaviors as in the Grindr case, whether it's for large platforms to say, "Well, I know this scam artist is paying me to put up content that probably is ripping people off, but I'm going to use Section 230 as a way to prevent me from acting responsibly and actually taking down that content." So if you don't believe those things are happening, then that's a position to have, again, respectfully, I would just fundamentally disagree with you.

I.L.: It's not my position—

Emily, are there other questions? I thought we were gonna hear from a variety of questions. I'm happy to do this debate but I thought that—

I.L.: Sure, we have some other questions, but I think it's really important to get at the criticisms that have been made, to hear you answer them in a straightforward way. And I don't think anybody is arguing that Section 230 has not been abused, and it certainly has, and we're going to discuss a lot of that. But I think when you introduce laws—

If you've got other other questions or criticisms, please.

I.L.: Sure, so another point of contention is that you've essentially created this provision around paid content, and it says that the SAFE TECH Act would remove immunity if the provider or user has accepted payment to make the speech available. And obviously, it seems like what you're trying to get at there is speech contained within an advertisement. But there are some folks who say that, the way it's drafted, it's much broader than that, like it might encompass content that's behind a paywall, or it might encompass content that is on a platform and positioned next to an advertisement. And so I wonder what your intent was with that provision, and why it's drafted the way it is.

I think this will be one of the areas that, as we continue through the iterative process that we've started … Yes, the advertising content is the most troublesome. But if you have a paid site, paid content that advertises a gun market that illegally sells machine guns that are banned by law across the whole country, and the platform company has enough knowledge to know that that is on the site — should the company not have any responsibility there? What's your view?

I.L.: This isn't a venue for me to express my view. Emily?

E.B.: I think it's interesting that you're still in an iterative process open to having further conversations to see where this legislation goes. I wanted to ask you about another piece of legislation that there's a lot of energy around right now, which is the PACT Act, from Sens. Schatz and Thune. Some have said it has a lot of potential to move, it's bipartisan, Facebook has expressed some willingness to get behind elements of it. It's sort of a narrower, lighter touch approach than yours. What do you think of the PACT Act? Do you intend to become a co-sponsor?

A couple of things. First of all, I have hope and expectation that our legislation will shortly become bipartisan, number one. Number two, I have a lot of respect for John Thune and Brian Schatz. They're both smart and informed members. And I think what they have focused on is transparency. They focused on procedural changes. What they don't focus much on is actual remedy. And at the end of the day, I doubt if there's going to be a single piece of legislation that becomes the all-telling, all-defining 230 legislation. I think there may be component parts of a variety of bills. I think that's the kind of iterative process that's out there. And, again, I wouldn't doubt the fact that the largest companies in the country and, for that matter, some large companies in the world, would prefer the lighter touch. But I think there are a lot of good parts of the PACT Act that I hope could become law.

E.B.: So you could see this process going something like, people bring their different proposals to the table, and you try to move them individually? Or as a package? How do you see the next couple months playing out around these proposals?

I do feel at times that the large platforms and their agents say they want reform. But it's always last year's reform or two years ago's reform and the world has moved beyond where they're at. And I think what we're seeing — whether it's data portability, interoperability issues, again, the areas where the platforms have moved, I think that's probably not going to be enough when the rest of the world is moving quicker. I say that as a macro point.

I do hope that we'll see as many good ideas as possible come together. I think there will have to be iteration. I think it's important that we not only have the platform companies and the entrepreneurial startups, … [but also that] we have the civil rights community at the table. I think all of these voices need to be at the table. But it is an area where there's gonna have to be some subtlety to this because this, you know, our bill is not going to get rid of all the misinformation and disinformation. It's not going to get rid of all of the defamation. It is not going to impinge upon people's First Amendment rights. So there will be many in the community, particularly in the political community, who are going to say we don't go nearly far enough. And we've actually seen that with, particularly with some of the comments coming out of former President Trump and some of his allies in the Senate today.

E.B.: President Biden during his campaign said that he's interested in revoking Section 230. We haven't heard much from him since. Have you had any conversation with President Biden or his legislative team about how they want to see Section 230 reform move forward, or what kind of priority it is to them?

I've had — not with the president, but I've had [conversations] with part of his staff. I think there's still a question as to where the locus of technology policy is going to fall. I hope it falls at the White House. I was happy to see Commerce Secretary Raimondo, who's got a tech background herself, indicate that she also believes we need revisions in Section 230. … We're open to having this conversation with all interested parties who want to get to that internet where people can express their views, but not in a way that violates people's civil rights or not in a way that absolves people of scamming or not in a way that leads to the kind of death and destruction we saw with the Rohingya in Myanmar. So we're open for business. And I believe, from some of the conversations I've had with the Biden team, that they are interested in that kind of debate as well. And, frankly, a lot of the ideas that we've expressed, I know some of the people, prior to being in the Biden administration, were very supportive of some of our ideas.