Section 230 and the EARN IT Act: The Latest Attack by Congress on Social Media

by: David Brokaw

Facebook CEO, Mark Zuckerberg, Twitter CEO, Jack Dorsey, and Sundar Pichai, CEO of Google, parent corporation Alphabet, have each agreed to testify at a hearing on October 28 before the Senate Commerce Committee to discuss the Communications Decency Act of 1996, 47 U.S.C. § 230 (“Section 230”). The hearing will happen as congresspeople decide on the Eliminating Abuse and Rampant Neglect of Interactive Technologies Act of 2020 (the EARN IT Act), which curtails Section 230 liability exemptions for websites when a user of the sites distributes online child sexual abuse material.

At issue are the liability shields in Section 230(c)(1) and (c)(2), which provide “Protection for ‘Good Samaritan’ blocking and screening of offensive material.” Section 230(c)(1)(a), the “key provision” of the statute, exempts website providers from liability for information posted on their website by either users or other information providers. Under this section, the providers of “interactive computer services” are not treated as the “publisher or speaker” of the information that is posted by their users or other websites. Section 230 distinguishes “interactive computer service providers,” like Facebook, from “information content providers,” like Facebook’s users, that gives service providers an exemption from liability that is incurred by the providers of the content posted on these services. Section 230(c)(2) gives additional immunity to website providers for any action they take to restrict offensive material, even if the material is constitutionally protected, that protects websites for their efforts to moderate offensive material. These two types of immunity act in tandem to allow websites to moderate user content as much, or as little, as they choose.

Section 230 has recently been scrutinized by the legislative and executive branches of government. Twitter has attached disclaimers to tweets and  videos posted by President Donald Trump that warns that those posts contain false, or misleading information, or glorify violence. Since his tweets have been regulated, Donald Trump has tweeted that lawmakers “. . . must fight back and repeal Section 230, immediately. Stop biased Big Tech before they stop you!” Trump’s Justice Department has also proposed legislation ending the Section 230 exemption, and the FCC is currently inviting public comment on a petition reassessing Section 230 liability exemptions that follows an executive order that Donald Trump issued about the exemption. Trump even withdrew FCC Commissioner Mike O’Reilly’s nomination for a second term after O’Reilly challenged the FCC’s authority to change Section 230. Donald Trump’s attacks on Section 230 have not ceased, shown by his recent tweet from October 6th: “REPEAL SECTION 230!!!”

Some Republican senators have also raised concerns with Section 230. Texas Republican Senator Ted Cruz falsely asserted, in a 2018 hearing with Facebook’s Mark Zuckerberg, that Section 230 liability exemptions only apply to interactive service providers that are a “neutral public forum,” but websites that also engage in political speech should not enjoy the benefit of Section 230 immunity. Senator Josh Hawley, a Republican from Missouri, introduced a bill in June which argues that Section 230 liability exemptions should not be extended to websites like Twitter, who Hawley believes treat users unfairly and make editing decisions that are not in good faith. (Hawley is also one of the senators who introduced the EARN IT Act, which has bipartisan support and is discussed below).

Both of these senators, along with other Republican lawmakers, have attacked Section 230 because they believe that it permits service providers to suppress conservative viewpoints by moderating user content in a partisan way. Republicans are also not the only congresspeople that currently oppose Section 230. There is bipartisan support to limit this exemption on website liability, with congresspeople from both parties and both presidential candidates supporting revisions to Section 230. However, the concerns lawmakers have with the current law differ. Republicans believe that sites like Twitter and Facebook have unfairly censored conservatives, while democrats believe these sites are not active enough in limiting hate speech and other offensive content.

This bipartisan support for changing Section 230 protections is reflected by the bipartisan sponsorship of the current greatest threat to Section 230 protections: the EARN IT Act, introduced by Democrat Senators Dianne Feinstein and Richard Blumenthal and Republican Senators Josh Hawley and Richard Graham. The proposed law, which targets online child sexual abuse material, would establish a National Commission on Online Child Sexual Exploitation Prevention to recommend “best practices” related to identifying this material to websites. Sites would have to comply with the recommended best practices to “earn” the benefit of Section 230 liability exemption. However, some are concerned the bill would disincentivize websites to work with law enforcement, and that all enforcement of online child protection laws may require a warrant. Others argue that the EARN IT Act is a “sneak ban” on end-to-end encryption that allows the government to further encroach on user privacy and would compromise the safety of websites which currently use end-to-end encryption. They argue that revoking Section 230 is not even necessary to combat child pornography because it does not exempt website from federal criminal liability.

Websites that Section 230 currently protects have also raised concerns. Social media sites Twitter, Google, and Facebook, who are scheduled to testify before Congress later in October about Section 230, have argued, at a previous hearing in June, that Section 230 protections should be maintained. During this hearing, Nick Pickles of Twitter pointed out that merely revoking Section 230 may not address all of Congress’s diverse concerns with internet moderation stating that “one side will say we want to stop moderation and so the solution is to get rid of [Section] 230, [while another] side will say we want much more moderation, and the same answer is offered . . .” Pickles also argued that revoking Section 230 exemptions “could be damaging to competition, damaging for innovation, and damaging for our ability to actually promote and protect our user’s speech.” Twitter has released multiple statements directly on their website arguing against “reactionary and political attempts to erode #Section230,” efforts which it believes “threaten the future of online speech and internet freedoms.”

The reaction among news and opinion blog sites has been similar. Derek E. Bambauer, writing for Brookings, argues that the revocation of Section 230 will have a chilling effect on online communication that will force websites to remove challenged content that is not offensive to avoid liability. A blog run by Laffey, Leitner & Goode, LLC, argues that revocation of Section 230 would force all websites to remove their comment sections and force social media websites to shut down because no websites would risk hosting third party content. Andrew Jay Schwartzman, a lawyer quoted by Bloomberg Businessweek, maintains that attacking Section 230 is merely a way for Republicans to express their dissatisfaction with social media companies.

Although widely panned, Congress’s reassessment of Section 230  still has some outside support. AT&T told the FCC that Section 230 gives too broad of a protection for tech companies and that the crafters of the CDA could not have known it would give so much protection to giant corporations like Facebook and Twitter. The Washington Post argues against the repeal of Section 230 in its entirety, but argues for a “bad Samaritan” provision that would strip protections from platforms that encourage lawless content. Similarly, the Washington Examiner advocates for “fixing” Section 230 to combat the “darker reality of total interconnectivity,” which was unforeseen when the CDA was enacted in 1996.

Congressional debate over Section 230 is part of a larger discussion about the power—and negative effects—of social media websites and other interactive computer service providers. The laissez-faire approach currently enjoyed by tech companies since the 1990’s is a product of a bygone era. Our use of the internet and social media has increased, and we have a fundamentally different relationship with our smart phones and tablets than internet users did with their immobile desktop computers, making Section 230 seem like a relic of a past.

But Congress must not go too far in exposing websites to liability. The Section 230 liability exemption is like the water that every internet user swims in. Robby Soave, writing for Reason, puts it best in the title of his article: “Trump Tweets 'Repeal Section 230,' Something He Couldn't Do if Section 230 Were Repealed.” Revoking Section 230 would obliterate the user-generate content and user communication that distinguish the internet from newspapers or television. Congress should pass legislation that can work alongside Section 230, limiting it where appropriate, and if that fails should rework Section 230 with a light touch, but Congress must never repeal Section 230. If Section 230 is revoked without adequate replacement, every novel and innovative characteristic of the internet may be destroyed—too high of a price to pay for better moderation practices.