Tech Orgs Object to Another New Bill Targeting Section 230

It’s a day that ends in Y – which means elected representatives are again talking about amending Section 230 of the Communications Decency Act, while representatives of the tech sector are sounding the alarm about the changes proposed by the legislators.

The latest bill to take aim at Section 230 is the “Online Freedom and Viewpoint Diversity Act,” (“OFVDA”) which was introduced Tuesday by U.S. Senators Roger Wicker (R-Miss), Lindsey Graham (R-S.C.) and Marsha Blackburn (R-Tenn).

Echoing the sentiments expressed in President Donald Trump’s recent “Executive Order on Preventing Online Censorship,” the sponsors of the OFVDA claim social media platforms are “hiding behind” the shield of liability offered to them by Section 230 while selectively censoring conservative political viewpoints.

“For too long, social media platforms have hidden behind Section 230 protections to censor content that deviates from their beliefs,” Wicker said in a statement issued Tuesday. “These practices should not receive special protections in our society where freedom of speech is at the core of our nation’s values. Our legislation would restore power to consumers by promoting full and fair discourse online.”

“Social media companies are routinely censoring content that to many, should be considered valid political speech,” Graham claimed in the same statement. “This reform proposal addresses the concerns of those who feel like their political views are being unfairly suppressed.”

Blackburn asserted that big tech companies “have stretched their liability shield past its limits, and the national discourse now suffers because of it.”

“Today’s internet is a different online product from what was available in 1996,” Blackburn added. “The polished megaplatforms we associate with online research and debate exert unprecedented influence over how Americans discover new information, and what information is available for discovery. Moreover, the contentious nature of current conversations provides perverse incentive for these companies to manipulate the online experience in favor of the loudest voices in the room. There exists no meaningful alternative to these powerful platforms, which means there will be no accountability for the devastating effects of this ingrained ideological bias until Congress steps in and brings liability protections into the modern era.”

In summarizing their bill, the senators said the OFVDA will “clarify when Section 230’s liability protections apply to instances where online platforms choose to restrict access to certain types of content.” The bill would also “condition the content moderation liability shield on an objective reasonableness standard.”

“In order to be protected from liability, a tech company may only restrict access to content on its platform where it has ‘an objectively reasonable belief’ that the content falls within a certain, specified category,” the senators said in their statement.

The bill would also remove the phrase “otherwise objectionable” from a key clause in Section 230, replacing it will terms the senators deem more concrete, like “promoting terrorism,” content that is determined to be “unlawful” and content that promotes “self-harm.”

The senators said the bill would also clarify that the definition of “information content provider” should include “instances in which a person or entity editorializes or affirmatively and substantively modifies the content created or developed by another person or entity but does not include mere changes to format, layout, or basic appearance of such content.”

Unsurprisingly, the response to the bill’s announcement from the tech sector has not been particularly enthusiastic.

“Section 230’s otherwise objectionable clause underpins crucial content moderation efforts that make their platforms safer for everyone,” said Elizabeth Banker, deputy counsel for the Internet Association (“IA”) in a statement issued Tuesday. “Eliminating that clause will make it harder, not easier, for online services to remove content like misinformation, platform manipulation, or bullying that’s neither illegal nor in the bill’s new description of allowable moderation. This bill would also hamper platforms from adapting to future moderation challenges.”

Banker added that the IA also has “serious First Amendment concerns with this bill.”

“This bill would limit the ability of private online platforms and services, including small forums for schools, churches, and local sports leagues, to set and enforce rules for their communities,” Banker said.

Carl Szabo, vice president and general counsel of NetChoice, said the bill would “thwart social media’s ability to remove Russian or Chinese election interference campaigns, misinformation about COVID-19, and cyberbullying from their services.”

“Furthermore, the bill would prevent online services from removing the very content Congress demands they remove – notably medical misinformation and efforts to undermine our elections,” Szabo added.

The bill is just the latest governmental initiative aimed at Section 230. Others under consideration include Trump’s recent executive order on social media,  the ”EARN IT Act”, the “Limiting Section 230 Immunity to Good Samaritans Act,” recommendations published by the DOJ in June, the “Stop the Censorship Act,” a policy paper written by Senator Mark Warner (D-VA), the Platform Accountability and Consumer Transparency Act and the “Behavioral Advertising Decisions Are Downgrading Services (BAD ADS) Act.”

There’s likely other bills and proposals on the table, as well, but you get the picture: The powers that be in D.C. are keen to amend, repeal or replace Section 230 – and that desire and the momentum behind it is likely to remain in place, regardless of who wins and loses in the presidential, congressional and senatorial elections coming in November.