A popular approach in GOP circles has been to tackle bias in the tech industry with an attack on the CDA’s protection for the dot coms.
To summarize, the CDA is the Communications Decency Act. It was supposed to stop pornography on the internet. Court decisions largely dismantled it, but lobbyists managed to stick a huge giveaway deep inside it.
That giveaway was Section 230 which effectively immunized companies like YouTube from copyright claims. And a lot of other legal obligations.
Here’s the transformation of the Section 230 talking point into a proposal.
Sen. Josh Hawley has announced legislation that would remove tech titans’ protection from liability for third-party content on their platforms.
The Missouri senator’s bill specifically targets Section 230 of the Communications Decency Act.
The Act, which became law in 1996, provides key legal protection to big tech. Section 230 states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Hawley, however, says that the Communications Decency Act was passed when the Internet was still in its infancy, whereas big tech firms are now among the world’s most powerful companies. His legislation, the Ending Support for Internet Censorship Act, would remove the protection that big tech receives under Section 230 unless the firms submit to an external audit that proves their algorithms and content moderation are politically neutral.
Under Hawley’s bill, big tech firms would have to provide evidence to the FTC proving that their algorithms and content-removal practices are neutral. Tech titans would also be responsible for the costs of performing audits, and would also have to re-apply for immunity every two years.
I am not a huge fan of the Section 230 approach. Some of the other people fighting this issue also aren’t because it would just mean a power shift in the power struggle between content owners and platforms, while being more likely to encourage censorship, rather than not.
Hawley is using it in an interesting way though by treating it as a stick and then offering a carrot.
Rather than just killing it, he’s making its applicability contingent on following certain practices. I don’t know enough to say whether this would stand up legally. And I’m skeptical that the Dem House would go for it. And for that matter, plenty of Senate Republicans would answer to dot com lobbyists first.
I’m also a little skeptical of having the FTC be in charge of the question. I could easily see a Dem administration use the FTC to force dot coms to instead remove whatever they consider disinformation or hate speech.
But it is an interesting approach worth more consideration and discussion.