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Protocol | Policy

What to make of a year of divisive Section 230 proposals

It was a lot: Let us help you make sense of it.

What to make of a year of divisive Section 230 proposals

Section 230 has had quite a year.

Image: Protocol

If you didn't know much about Section 230 heading into 2020, you'll surely leave the year a changed person.

This was the year that the oft-misunderstood law underpinning the modern internet went from a niche tech policy issue to a top priority for lawmakers, the federal government and the White House. And there have been opinions. So very many opinions.

Democrats have claimed Section 230 enables the unabated spread of misinformation on social media. Republicans insist it has empowered the platforms to crack down on conservative speech without any consequences. Neither claim is exactly correct, but that's politics.

Senate Majority Leader Mitch McConnell and President Trump are even demanding that Congress repeal Section 230 entirely in exchange for increasing stimulus payments to $2,000.

Polls still show voters don't consider regulating social media companies to be a top priority. But policymakers are sure trying their best to make it one, signaling they think this could be a galvanizing political issue for the new Congress, Biden administration and beyond. And the outcome could have a profound effect on the future of tech companies.

Protocol looked back at this year's major Section 230 proposals to help make sense of the arguments that you won't be able to avoid in 2021.

Jan. 17: Joe Biden calls for revoking Section 230

A strong start to the year: Biden, one of many Democratic presidential candidates at the time, called for repealing Section 230 in a Q&A with The New York Times. That's a stronger position than that held by even some of the law's toughest critics, and it was widely considered to be a gaffe — but since then, the Biden campaign has confirmed that the president-elect means what he said. (Top Biden adviser Bruce Reed recently called for throwing Section 230 out and starting from scratch in an essay.)

"I've never been a fan of Facebook, as you probably know," Biden told the New York Times Editorial Board in January. "I've never been a big Zuckerberg fan. I think he's a real problem."

When Times reporter Charlie Warzel pointed out Section 230 is a foundational law for the internet, Biden said, "That's right. Exactly right. And it should be revoked."

Feb. 28: Democratic Rep. Jan Schakowsky circulates the Online Consumer Protection Act

Rep. Jan Schakowsky, the top Democrat on the House Committee on Energy and Commerce's consumer protection subcommittee, began circulating her Section 230 bill to stakeholders at the end of February, just before COVID-19 lockdowns began to sweep across the country. Schakowsky's bill, still not introduced, would expand the Federal Trade Commission's authority to punish social media companies that keep up content that violates its terms of service. This bill clearly represents Democrats' perspective that Section 230 enables platforms to keep up harmful content without any consequences.

Schakowsky said in a statement to Protocol that she plans to pursue a "platform accountability agenda that makes clear that consumer protection is not in conflict with free expression online" during the new Congress, where she will continue to serve as the chair of the subcommittee.

She said she intends to introduce the Online Consumer Protection Act "early in the next Congress."

March 5: Sens. Richard Blumenthal and Lindsey Graham introduce the EARN IT Act

The EARN IT Act, introduced after months of negotiations, speculation and rumors, was the most serious legislative effort to reform Section 230 since FOSTA-SESTA. In its original form — more on what happened to it below — it would have required tech companies to take certain steps to reduce the amount of child sexual exploitation on their platforms in order to keep their Section 230 protections. It would also have established a government-backed commission to recommend "best practices" around identifying and reporting online child sexual exploitation.

Tech trade groups and civil liberties groups panned the legislation as a roundabout effort to undermine end-to-end encryption via backdoors. At the time, Democratic Sen. Ron Wyden slammed the bill as a "Trojan horse to give Attorney General [William] Barr and Donald Trump the power to control online speech and require government access to every aspect of Americans' lives."

May 28: Trump signs the Executive Order on Preventing Online Censorship

The spigot of Section 230 proposals shut off as coronavirus took hold. But they picked right back up again by the summertime amid a bitter fight over Twitter's decision to fact-check one of Trump's tweets about mail-in ballots. Trump ordered his staff to "do something" to take on the social media company — and within a matter of days, his staff had taken an old draft executive order off the shelf and "rammed it through," Protocol reported at the time.

The controversial executive order, which focused on allegations that the platforms censor conservative viewpoints online and is now the subject of numerous lawsuits, required the Department of Commerce to petition the FCC to conduct a review of Section 230 and encouraged the FTC to review allegations that the tech companies stifled conservative voices online. It was panned by even the staunchest advocates for Section 230 reform, who said it posed significant First Amendment concerns as the president tried to leverage political power over platforms as they made decisions he didn't like.

June 17: DOJ releases Section 230 recommendations

The Department of Justice held a workshop on Section 230 at the very beginning of the year, promising to issue a set of recommendations for reforming the law if they determined it was necessary. At the event, Attorney General William Barr accused the social media companies of hiding behind the 1996 statute to avoid responsibility for "selling illegal and faulty products, connecting terrorists [and] facilitating child sexual exploitation."

In June, the DOJ released its long-awaited recommendations. They fell into four buckets: "incentivizing online platforms to address illicit content," "clarifying federal government enforcement capabilities to address unlawful content," "promoting competition" and "promoting open discourse and greater transparency." Elements of those recommendations have shown up in multiple pieces of proposed legislation since.

June 17: Sens. Josh Hawley and Marco Rubio introduce the Limiting Section 230 Immunity to Good Samaritans Act

Republican Sen. Josh Hawley introduced his first Section 230 bill in 2019, but he kept them coming in 2020. The Limiting Section 230 Immunity to Good Samaritans Act was introduced the same day that the DOJ issued its recommendations and less than a month after the White House's executive order. The Rubio-Hawley bill would force social media companies to abide by a contractual "duty of good faith" to treat users fairly when writing and enforcing content moderation policies. Under the bill, users could sue Facebook or Twitter for "censoring" their speech.

June 24: Bipartisan Sens. Brian Schatz and John Thune introduce the PACT Act

Right on the heels of the Republican-led efforts to pare back Section 230, Sens. Brian Schatz and John Thune introduced their bipartisan PACT Act, which they described as a lighter-touch effort to update Section 230. Schatz and Thune's legislation would require platforms to provide more clarity around their moderation policies, take down illegal content within 24 hours and issue quarterly reports on their moderation decisions.

It's one of the most hopeful legislative proposals introduced this year, especially after Facebook and Twitter came out in support of some of its provisions around transparency. (Facebook and Twitter already do much of what's laid out in the PACT Act.)

July 28: Sen. Hawley introduces the Behavioral Advertising Decisions Are Downgrading Services (BAD ADS) Act

Hawley was back again by the end of July with a new Section 230 proposal, this time aimed at curtailing the explosion of behavioral advertising online. Hawley's BAD ADS Act would strip away Section 230 protections for sites that use behavioral advertising to make money, meaning most major social media platforms. It would bar companies from targeting advertising to users based on their personal traits or information, effectively banning the central business model of Facebook and Google. (But would only apply to companies with either 30 million users in the U.S. or 300 million worldwide with $1.5 billion in global revenue).

Hawley has made it clear that he has no intention to back down from his political battle against Big Tech anytime soon.

"Big Tech wants to run our country and is a threat to our democracy," Hawley said in a statement to Protocol. "Unless Congress does something about it, Big Tech companies will never be held accountable and will never stop controlling what we see and say on the internet because Section 230 gives these companies unchecked monopoly power. It's dangerous and past time for Congress to get off its backsides and protect Americans."

July 2: Senate Judiciary Committee approves EARN IT Act with significant amendments

The EARN IT Act that was approved unanimously by the Senate Judiciary Committee looks very different from the original version, but some of its fundamental concerns remain the same.

The latest version of the EARN IT Act would still create a government-backed commission to draw up "best practices" around removing online child exploitation, but those recommendations would be voluntary rather than legally required, and it would shift much of the responsibility for enforcing the law to the states.

There's very little appetite to pick up the EARN IT Act in the House, congressional aides told Protocol, which will likely create a significant obstacle if senators hope to push it through next year.

Sept. 8: Sens. Roger Wicker, Marsha Blackburn and Lindsey Graham introduce the Online Freedom and Viewpoint Diversity Act

This bill was introduced hours after Trump urged Senate Republicans to band together to "fight back and repeal Section 230." It would require companies to only restrict content when they have an "objectively reasonable belief" that it falls within a banned category and limit the kinds of content that platforms can remove, prohibiting vague reasoning like "misinformation" or "hate speech."

Wicker and Graham are two heavy-hitters who have a lot of sway over the direction of tech-related legislation, but it's unlikely to pick up any Democratic support, likely dooming its prospects in a divided Congress.

At a pair of hearings with the tech CEOs last month, Wicker and Graham both expressed some trepidation around the idea of completely repealing Section 230.

Sept. 23: Department of Justice unveils Section 230 legislation

The Department of Justice followed through on its promise to unveil proposed Section 230 legislation a few months after it circulated its recommendations. The legislation, which follows the department's yearlong internal review, would hold companies liable if they don't follow their own terms of service and give users the ability to sue platforms for purposely promoting, soliciting or facilitating illegal material such as revenge porn.

The DOJ's legislation has to be introduced in Congress in order to have any importance. It wasn't picked up word-for-word during this congressional session but it could influence proposals moving forward, especially if Republicans keep the Senate.

Sept. 29: Bipartisan Sens. Joe Manchin and John Cornyn introduce See Something, Say Something Online Act

Sen. Joe Machin, the centrist Democrat from West Virginia, has said for years that tech companies should be held legally liable for opioid sales on their platforms, and that's just what this bill would do. It would require social media companies to take "reasonable steps" to prevent unlawful drug sales on their platforms or else face legal repercussions, and also require the companies to report more suspicious activity to law enforcement.

The proposal has some echoes of the DOJ's ideas about paring back Section 230 to prevent illegal activity online. And it's possible that similar proposals could be tucked into future legislation on the issue.

Oct. 13: Clarence Thomas says it's time to rein in Section 230

The powerful conservative justice said in a statement that he thinks the high court should weigh in on Section 230 sooner rather than later, arguing that lower courts have been interpreting the statute too broadly and allowing internet companies too much leeway.

"Extending §230 immunity beyond the natural reading of the text can have serious consequences," Thomas wrote in response to a Section 230 case before the court, Malwarebytes Inc. v. Enigma Software. He agreed that it was not the appropriate case, but said that "in an appropriate case, it behooves us" to consider the complicated legal questions around the statute.

This was an empowering moment for the conservative movement to reform Section 230 as they welcomed one of the most important Republicans in the country onto their side.

Oct. 15: FCC Chairman Ajit Pai announces he will move forward with Section 230 rule-making

Trump's social media executive order required the Department of Commerce to petition the FCC to make new Section 230 rules, but it didn't require the FCC to accept that petition (which was submitted July 27). But on Oct. 15, Pai surprised even some of his allies with his announcement that the FCC would move forward with a rule-making to clarify the meaning of Section 230.

Pai's language was delicate and even-keeled, and he cited Thomas's support in order to justify the need to consider making new rules. But so far, Pai has done little to move forward with that rule-making, and it's unclear what he will do before Democrats take over in January. Pai is planning to step down in January.

Oct. 20: Reps. Anna Eshoo and Tom Malinowski introduce the Protecting Americans from Dangerous Algorithms Act

This bill from Silicon Valley Rep. Anna Eshoo would hold tech companies liable if their algorithms amplify hateful or radicalizing extremist content, getting to the heart of one major Democratic argument against Section 230. The proposal would narrowly target the algorithmic promotion of harmful extremist content and preserve the elements of the law that protect users' online speech.

Eshoo said she and Malinowski will reintroduce the bill in the new Congress.

"The bill uses a scalpel rather than a sledgehammer to update Section 230," Eshoo said in a statement to Protocol. "I'm optimistic that Congress will take up reforming Section 230, but we must take the time to do this carefully and thoughtfully to avoid unintended consequences."

Oct. 29: Mark Zuckerberg and Jack Dorsey call for changes to Section 230

After facing pressure from the White House, the Senate Commerce Committee hauled in Mark Zuckerberg, Jack Dorsey and Sundar Pichai for a hearing titled "Does Section 230's sweeping immunity enable big tech bad behavior?" The hearing offered little in the way of substantive conversations about Section 230, but it marked the first time both Dorsey and Zuckerberg have said explicitly that they are open to Section 230 reform.

Dorsey suggested several specific pathways, noting that his priority in any reform will be "remember[ing] that Section 230 has enabled new companies — small ones seeded with an idea — to build and compete with established companies globally."

Zuckerberg said he believes "Congress should update the law to make sure it's working as intended." At a hearing following the election, he offered more details about what that legislation could look like — and they're ... pretty similar to what Facebook already does.

Dec. 1: Trump threatens to veto a must-pass defense bill unless it "repeals" Section 230

Trump ended the year with an eleventh-hour push to include a provision repealing Section 230 in the National Defense Authorization Act, a must-pass bill that has passed every year for decades. In a tweet, the president insisted the law should be "completely terminated."

Senate Republicans floated a set of Section 230 reform proposals to House Democrats in an attempt to hammer out language that could make it into the bill, but those ideas were immediately shot down, aides told Protocol. The NDAA passed the House and Senate with veto-proof majorities.

Trump officially vetoed the NDAA on Dec. 23. This week, the House voted to override Trump's veto and the Senate is expected to do the same.

Dec. 29: McConnell ties the stimulus checks to the repeal of Section 230

Under orders from Trump, McConnell tied the fate of $2,000 stimulus checks to the repeal of Section 230, an effort that could effectively doom both pieces of legislation in the Senate. Democrats said including the Section 230 repeal amounted to a "poison pill" that would make passing the $2,000 checks impossible, and the House would not pass the legislation.

The year is ending with Section 230 still intact.

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