- Senate Republicans and Democrats both want to reform Section 230 to exercise control over acceptable online content moderation, but for vastly different reasons.
- Republicans have opposed Section 230 because they feel that major social media platforms have gone too far with moderating content, while Democrats generally want more content to be suppressed.
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Senate Republicans and Democrats both want to reform Section 230 to exercise control over acceptable online content moderation, but for vastly different reasons. This partisan split was on full display this week at the Senate Commerce Committee's hearing to discuss the landmark piece of internet legislation with the CEOs of Facebook, Twitter, and Google.
The hearing was called in response to decisions taken by Twitter and Facebook to limit the distribution of a New York Post story detailing correspondence between Hunter Biden and an advisor to Burisma, a Ukrainian energy company: Twitter blocked users outright from sharing the story, while Facebook tweaked its algorithm to limit its distribution.
Republican Sen. Ted Cruz of Texas asked Twitter CEO Jack Dorsey: "Who the hell elected you and put you in charge of what the media are allowed to report?" Meanwhile, Democrat Sen. Brian Schatz of Hawaii admonished Dorsey to not "let the specter of removing Section 230 protections or an amendment to antitrust law or any other kinds of threats cause you to be a party to the subversion of our democracy."
So what's Section 230, and how will the upcoming election impact its application? Here's what you should know:
- Section 230 is part of the Communications Decency Act of 1996 that provides protections to interactive computer services from liability for anything posted on those services by others. The category of interactive computer services covers everything from ISPs to social media, and even blogs or news sites if they host a comments section. The practical effect is that companies like Google, Facebook, and Twitter have the ability to host and moderate content without the threat of criminal liability.
- In the past few years, Section 230 has been in the spotlight and under attack by both of the two major parties—and the subject of copious misunderstanding and misinformation. The most common one is that the law creates a distinction between "publishers" and "platforms" that shields companies like Facebook and Twitter but not traditional types of publishers. But just as Facebook and Twitter are not liable for illegal content posted by their users, neither is The New York Times liable for comments posted by its readers. All three services are, meanwhile, liable for illegal content posted by the companies themselves.
- Republicans have opposed Section 230 because they feel that major social media platforms have gone too far with moderating content. They assert that these platforms have a bias against conservatives and are aggressively and inconsistently applying their moderating role to limit First Amendment rights of conservative sites. In response, they generally want to force platforms to engage in less moderation or more even-handed forms of moderation.
- Democrats, on the other hand, generally want more content to be suppressed than is currently the case for most social media. In late October 2020, for instance, Democratic Representatives Anna Eshoo and Tom Malinowski introduced a bill that would amend Section 230 to remove the liability shield in cases where algorithms amplified or recommended extremist content that led to violence.
Despite all of the calls to revoke or significantly amend Section 230, however, actually doing so will be difficult. Whether the FCC has clear jurisdiction in this area is up for debate, although FCC Chairman Ajit Pai in October said the commission had the legal authority to reinterpret Section 230, citing the body's legal counsel. If the FCC's efforts to change Section 230 fail, reform would need to come from Congress.
The Trump administration has sent a proposed bill to Congress that would do this, and several Republican senators introduced a bill that would remove the liability shield if a platform restricted "access to or availability of material provided by another information content provider." That essentially guts Section 230—and goes squarely against what most observers believe are First Amendment protections of private organizations to determine what goes on their platforms.
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