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The tech industry will likely emerge unscathed from a chaotic end-of-year showdown between Congress and President Trump over its Section 230 legal protections.
On Wednesday, the president vetoed the National Defense Authorization Act in part because it does not repeal Section 230 — but tech industry representatives said they remain cautiously optimistic that Congress has enough votes to override the veto later this month.
"The Act fails even to make any meaningful changes to Section 230 of the Communications Decency Act, despite bipartisan calls for repealing that provision," Trump said in a message accompanying the veto. "It is a 'gift' to China and Russia," he wrote.
Key lawmakers, including top Republicans, have made it clear they're planning to override the veto, the first time they'll do so during Trump's presidency. Tech lobbyists have largely shrugged off the possibility that Section 230 repeal or reform could actually make it into the NDAA.
"Regarding the NDAA, there appears to be little consternation by the legislators that the veto can't be overridden," said Arthur Sidney, vice president of public policy with the Computer & Communications Industry Association, which represents companies including Google and Facebook. "We are always vigilant because Section 230 is such an important law to both technology companies and consumers. But we're hopeful that, based upon publicly available information, there's enough support to override it."
Meanwhile, congressional aides and lobbyists shot down the prospect of Section 230 repeal playing a serious role in negotiations around the future of the COVID-19 omnibus bill, which Trump has hinted he might veto as well.
"The likelihood of [Section 230 reform] getting attached to NDAA or omnibus, I put as a low threat," said Carl Szabo, vice president of tech trade group NetChoice, describing the feeling within tech as "cautious optimism" and "trust-but-verify."
Sen. Lindsey Graham, a top Trump ally, set off alarm bells with a Tuesday night tweet suggesting the fates of the NDAA and omnibus bill could rest on Democrats' willingness to compromise on Section 230 reform. "I hope Speaker [Nancy] Pelosi will agree with President Trump that Big Tech needs to be reined in by winding down Section 230 liability protections," Graham tweeted. "I have reason to believe this combination will lead to President Trump supporting the NDAA and COVID19 omnibus bills."
But any last-ditch effort to include Section 230 reform language in the sprawling omnibus bill, which is already in a tenuous position, would be a non-starter for Democrats. "There is no move to put 230 repeal on the floor," said one Democratic aide. "Senator Graham is watching too much Fox News."
At the same time that Graham was threatening Section 230 repeal on Twitter, his lead counsel on tech and IP-related issues, Joe Keeley, sent an email announcing he is leaving his position at the end of this year, the Senate Judiciary Committee confirmed. Keeley will move to the Senate Budget Committee during the next session.
Congress is set to return to Washington on Dec. 28 to override Trump's NDAA veto. And lawmakers have indicated they're gearing up for a second override if Trump follows through on his implied threat to veto the omnibus bill, which passed both chambers with huge majorities this week. Trump has claimed that he will not sign the legislation unless lawmakers bump up direct payments from $600 per individual to $2,000 — an effort supported by Democratic leaders and a sticking point for most Republicans.
If Trump does not sign the omnibus bill, he will be holding billions in COVID-19 relief and $1.4 trillion in government funding. He could be teeing up the fourth government shutdown of his tenure, but so far, most Washington insiders remain in the dark about what his next move might be.
The tech industry, meanwhile, will remain on high alert for future threats to its business — especially after President-elect Joe Biden this week appointed Bruce Reed, a close adviser who has called for Section 230 to be completely reformed, to be his deputy chief of staff.
"More time is necessary to consider Section 230 because it is an important issue," Sidney said. "One thing is for sure: It shouldn't be wedged into must-pass legislation."
Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.