Sen. Josh Hawley, R-Mo., is taking aim at Silicon Valley’s biggest players with a bill that would strip them of immunity granted during the Clinton era for content posted by users.
Hawley’s bill, called the Ending Support for Internet Censorship Act, would require companies from Facebook to Twitter to show the Federal Trade Commission “clear and convincing evidence” their algorithms and content-removal policies are “politically neutral” every two years. Immunity certification, which would replace the blanket barrier to libel claims provided under Section 230 of the Communications Decency Act, could be granted only by a supermajority of commissioners.
The bill would apply only to internet companies with more than 30 million active monthly users in the U.S., more than 300 million monthly active users worldwide, or more than $500 million in global annual revenue.
“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,” Hawley said in a statement. “Unfortunately and unsurprisingly, BigTech failed to hold up its end of the bargain.”
The bill addresses a frequent complaint from conservative lawmakers and President Trump, whose personal Twitter account has more than 60 million followers, that tech companies have suppressed conservative posts they dislike.
“There’s a growing list of evidence that shows big tech companies making editorial decisions to censor viewpoints they disagree with,” Hawley said. “Even worse, the entire process is shrouded in secrecy because these companies refuse to make their protocols public.”
Enacted in 1996, Section 230 has been a crucial defense for tech companies facing litigation stemming from harmful content posted online.
Platforms like Facebook and Twitter have struggled to keep up with the proliferation of extremist, terrorist, and racist content on their platforms despite the introduction of artificial intelligence to speed analysis and action. As a result, policymakers in Washington are considering their own steps, with a change to Section 230 among the options.
House Speaker Nancy Pelosi, D-Calif., said in April that Silicon Valley is not treating the immunity provision “with the respect that they should.”
“For the privilege of 230, there has to be a bigger sense of responsibility on it, and it is not out of the question that that could be removed,” she told Recode. Pelosi herself was targeted on social media in late May, with a video whose playback speed had been slowed to make her appear intoxicated.
It may be time for Congress to “have a debate in this area around content,” Sen. Mark Warner, D-Va., suggested Monday.
Any such efforts are likely to spark a fierce battle between Capitol Hill and Silicon Valley. Already, the Internet Association, a trade group representing Google, Facebook, Twitter, and Reddit, has lambasted Hawley’s proposal.
“This bill forces platforms to make an impossible choice: either host reprehensible, but First Amendment-protected speech, or lose legal protections that allow them to moderate illegal content like human trafficking and violent extremism,” Internet Association President Michael Beckerman said. “That shouldn’t be a trade-off.”
Sen. Ron Wyden, D-Ore., who co-authored Section 230, said Hawley “has written a bill to deputize the federal government as the speech police in flagrant violation of the First Amendment.”
“This bill would essentially force every platform to become 4chan or 8chan rather than maintain some basic level of decency,” Wyden said in a statement, referring to imageboard sites that have been criticized for extreme content, including alt-right posts.
He stressed that Section 230 was designed during the early days of the Internet to shield private companies from an onslaught of “nuisance lawsuits, the sort that kill innovation in its infancy.”
“The old Republican party fought tooth and nail for this sort of protection, but the party of Donald Trump clearly believes that lawyers and bureaucrats should tell private companies how to make clearly private business decisions,” Wyden said. “The drive by Republicans to eliminate the autonomy of large private firms is extremely disturbing.”
Hawley’s measure also received pushback from Americans for Prosperity, a grassroots conservative organization backed by Charles Koch.
“Eroding the crucial protections that exist under Section 230 creates a scenario where government has the ability to police your speech and determine what you can or cannot say online,” said Billy Easley, a policy analyst for the group. “Sen. Hawley has argued that some tech platforms have become too powerful, but legislation like this would only cement the market dominance of today’s largest firms.”
