Section 230, the liability shield for internet platforms, faced another round of attack at a Senate Commerce Committee hearing on Wednesday, this time with two separate undercurrents complicating the negotiations. One was an unprecedented wave of ongoing legal challenges to the law, and the other was increased bipartisan concern over government censorship.
Senator Brian Schatz (D-HI) said in his opening remarks, “Section 230 is not one of the Ten Commandments.” “The idea that we can’t touch this, otherwise internet freedom will be destroyed, is absurd.” Sens. Dick Durbin (D-IL) and Lindsey Graham (R-SC) have introduced a bill to repeal Section 230 entirely as soon as the law turns 30 years old, while other proposals attempt to narrow its scope.
Section 230 protects social media platforms, newspaper comment sections and other online forums from being liable for content posted by their users, and protects the platforms if they choose to limit or remove that content. It is fundamental to many online services, but critics believe its security is too broad and outdated for massively successful Big Tech companies. The debate at this hearing focused mostly on two issues: harm to children and alleged over-policing of conservative content.
The background was a recent trial in Los Angeles where jurors are now deliberating whether Instagram and YouTube were designed in a way that would harm a young plaintiff, and whether certain design decisions fall outside the protections of Section 230. Matthew Bergman, whose Social Media Victims Law Center has led the charge in this product liability model of social media litigation, testified before the committee, behind him sat parents holding photos of their children who died after allegedly experiencing harm online.
Bergman said he does not support a full repeal of Section 230, but while the product liability lawsuit plays out in court, Congress can help his cause by making clear that the law is not intended to protect platforms’ design decisions. Some lawmakers asked whether new laws were needed for families like Bergman’s clients, or whether cases like his showed that courts could work around it under existing law. Bergman said that if they waited for the courts to decide, “more children would die.”
“It is no longer theoretical that the door swings both ways in Washington.”
Another mainstream theme of the hearing was widespread awareness of the dangers of government censorship and its potential to chill online speech, including coercive threats or coercion. Schatz praised the leadership of Committee Chairman Ted Cruz (R-TX), who attacked the Biden administration for coercion, but also criticized Federal Communications Commission Chairman Brendan Carr’s proposed legislation to address threats and censorship of broadcasters. And Schatz said he was concerned by the Biden administration’s approach to disinformation about the COVID-19 pandemic, including urging social media companies to remove posts that spread it. He said, “It’s no longer principled that the door swings both ways in Washington, and that’s going to bother all of us and we have to fix that.”
Cruz disagrees with colleagues who want to repeal Section 230 entirely, believing it would encourage tech platforms “to engage in more censorship to protect themselves from litigation.” Still, he said, “We should consider whether Section 230 needs to be reformed to encourage more speech online and prevent Big Tech censorship.”
Tensions rose when Sen. Eric Schmidt (R-MO) feuded with a witness, Daphne Keller, director of platform regulation at Stanford Law School. In his former role as Missouri attorney general, Schmidt unsuccessfully sued the Biden administration over alleged pressure on social media companies over COVID and election disinformation. Schmidt took aim at Keller over his ties to Stanford, whose Internet Observatory was effectively dismantled after facing sustained attacks on its work identifying election misinformation.
Earlier in the hearing, Keller said she “didn’t like” the pressure displayed by Biden administration officials, but the lawsuit failed to provide evidence that the government forced the platforms to remove the posts. Keller said this resulted in a “problematic” Supreme Court decision that would make it harder for “genuine victims of Jaws hunting in the future” to go to court. But he also said that the current administration, including Carr’s actions, have helped usher in an era “unprecedented in my lifetime.”
However, Keller disputed that the Stanford Internet Observatory had “a role with the Biden administration” in flagging content that was “not consistent with the Biden administration’s viewpoint”, as Schmidt claimed. He said his colleagues were “exercising their First Amendment rights to talk to the government and say what they think should happen.”
When Keller said she was not involved in negotiations between her colleagues and the Biden administration, Schmidt responded, “You can read all about it missouri vs bidenThe case that went to the Supreme Court.
“The one you lost?” Keller hit back. (Schmidt clarified that it was sent back to the lower court.)
Some witnesses proposed alternatives to removing or changing Section 230. Nadine Farid Johnson, policy director of the Knight First Amendment Institute, suggested passing privacy protections, adding interoperability requirements for social networks and expanding researchers’ access to the platforms, saying it could prevent companies from using personal data to hook users and provide more information about how the platforms work.
The hearing briefly discussed Silicon Valley’s latest focus: new regulatory questions raised by generative AI. Brad Carson, president of Americans for Responsible Innovation, said Section 230 should not protect AI outputs, and warned against preemptively enacting AI laws that could rein in the fast-growing industry — criticizing a policy supported by some Republicans, including Cruz. Cruz also brought up the Take It Down Act, a law that requires platforms to remove reported non-consensual intimate images, whether real or AI-generated, as an example of a “targeted law” that avoids amending Section 230.
No matter how much pressure Congress applies to add guardrails to the platforms, however, Cruz acknowledged that children will find ways around them. After his 14-year-old daughter’s phone was taken away as punishment, he recalled at the hearing, his wife received an email from Verizon “that made no sense.” The daughter soon confessed to removing the SIM card from her phone and using it in a burner phone before handing it over. “I was angry and really proud at the same time,” Cruz said. “This shows how incapable parents are of keeping up with teens on these issues.”
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