Changing liability rules would ‘gut’ internet, tech experts say

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The provision in U.S. law that protects social media sites and other websites from lawsuits over user-generated content is under fire, with some lawmakers suggesting it is time to hold sites more responsible for their users’ posts.

Section 230 of the Communications Decency Act of 1996 holds that websites generally are not legally responsible for content posted by their users, including for defamation, breach of contract, and emotional distress. The provision protects video-hosting sites such as YouTube and social media providers such as Facebook and Twitter, as well as any website that allows users to post comments.

Josh Hawley, a Republican senator, has introduced legislation that would remove Section 230’s legal protections from websites guilty of anti-conservative bias. The Missouri lawmaker’s Ending Support for Internet Censorship Act, introduced June 19, would remove the legal immunity from websites unless they submit to an external audit “that proves by clear and convincing evidence that their algorithms and content-removal practices are politically neutral,” according to the senator’s office.

In a recent House hearing about so-called deepfake videos, Democratic Rep. Adam Schiff of California and witness Danielle Keats Citron, a University of Maryland law professor, both suggested weakening Section 230 as a way to encourage websites to take down maliciously edited videos.

Hawley’s bill targets only the largest websites, applying only to those with more than 30 million active monthly users in the U.S., more than 300 million active monthly users worldwide, or more than $500 million in global annual revenue. Only a handful of sites would qualify, including Facebook, Reddit, Google, YouTube, Instagram, and Twitter.

Conservative groups have long accused sites such as Facebook and Google of downplaying their voices while promoting more liberal content, suspicions fueled by evidence of lopsided support for Democrats among the companies’ employees.

Hawley suggested there’s a “growing list of evidence” that some websites are censoring user content they disagree with. “With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” he said in a statement. “Unfortunately, and unsurprisingly, big tech has failed to hold up its end of the bargain.”

Evidence of widespread anti-conservative bias remains anecdotal. In May, President Trump’s White House launched a website where users can report alleged instances of bias by social media companies.

Some digital rights and tech trade groups oppose Hawley’s bill. The legislation would create a “speech license” that would give the government authority to determine appropriate online content, in likely violation of the First Amendment, said Michael Petricone, senior vice president for government affairs at the Consumer Technology Association.

“The First Amendment is the cornerstone of our democracy, and the right to freely exchange ideas has helped make us the most innovative country in the world,” he added. Section 230 “is the core, common-sense principle that responsibility for online speech should lie with the speaker, rather than the host.”

Hawley’s bill would create “bizarre incentives” for websites to censor all political speech or halt all content moderation in an effort to prove neutrality, he added. Abandoning content moderation would “allow free reign to violent extremists, Nazis, and other repugnant actors.”

By forcing popular sites to apply to the Federal Trade Commission for Section 230 certification every two years, the bill would “gut” America’s internet ecosystem, according to Petricone. Large websites would be forced to change their practices to “please whatever party controls the FTC.” The bill would also require a supermajority of the Federal Trade Commission, four out of five commissioners, to recertify a website’s application.

Instead of ending censorship, the bill would create more incentives for large websites to censor content, added Spandana Singh, policy program associate at New America’s Open Technology Institute.

The Open Technology Institute has called for greater transparency on the content takedown practices at large sites. However, Singh added, Section 230 remains crucial to protecting free expression, including political speech of all viewpoints.

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