While debates about Section 230 have often offered partisan and questionable legal suggestions, a recent ban by YouTube of some anti-vaccine content and recent testimony from Facebook’s Instagram platform has brought a particular bill back into the fray.
Since it became a hotbed of politics during the 2020 election, both Republicans and Democrats have sought to reform or change the law somehow, often doing so without realizing what the law is protecting. One of the more promising submissions is the SAFE TECH Act, announced by Sens. Mark Warner, Mazie Hirono, and Amy Klobuchar in February.
“Section 230 has provided a Get Out of Jail Free card to the largest platform companies even as their sites are used by scam artists, harassers, and violent extremists to cause damage and injury,” argued Warner in the initial announcement. “This bill doesn’t interfere with free speech. It’s about allowing these platforms to finally be held accountable for harmful, often criminal behavior enabled by their platforms to which they have turned a blind eye for too long.”
The SAFE TECH Act is designed, in theory, to uphold the protections of Section 230 while allowing for prosecution in exceptional cases. For example, the SAFE TECH Act would make it so that ads, paid content, and other profit-based services would be exempt from Section 230. In addition, it would allow injunctions to be filed against tech companies and would make cases involving cyberstalking, harassment, and human rights violations exempt from Section 230 protections.
“The SAFE TECH Act could help spark some meaningful changes regarding Section 230,” Christa Ramey, trial attorney and founder of Ramey Law, said. Ramey deals in cases involving bullying and cyberbullying that often mean dealing with tech companies and the platforms that teenagers use to attack fellow students. While Ramey said that most teenage harassment occurs on private messaging platforms such as Signal and WhatsApp, she said she sees much potential in the ability to sue companies over their platforming of harassment or stalking. Ramey pointed to the platforms’ attempts to combat misinformation in 2020 as evidence that the tech platforms could do the same with harassing speech and would hope to use some of the reforms presented in the SAFE TECH Act to encourage Big Tech companies to regulate better and stop harassing conduct on their platforms.
Others are less certain of the bill’s viability. “SAFE TECH relies on a few flawed views,” argued Shoshana Weissmann, a fellow at the R Street Institute. “It removes Section 230 protection for most paid speech online, but online services are no better suited for immaculate moderation for paid content as opposed to free content. Whether for platforms with millions of pieces of content or a few dozen pieces of content, it is impossible to determine what content is illegal. That is why we have courts and judges who decide such things.”
Weissmann told the Washington Examiner that many of the reforms offered by tech-related bills, including the SAFE TECH Act, fail to make the key distinctions that they claim to make. For example, the SAFE TECH Act distinguishes that web interactions where money is exchanged would be exempt from Section 230 protection to regulate online advertising. While this sounds viable to a layman, it ignores that many online interactions are driven by financial exchanges, including web-hosting platforms.
Other tech policy organizations also echoed Weissmann’s thoughts. The Electronic Frontier Foundation described the bill as a “shotgun approach to Section 230 reform,” which would open the door to many lawsuits. Mike Masnick of the Copia Institute argued that the bill “effectively wipes out Section 230 protections for the entire internet while pretending it’s just a minor change.”
While the SAFE TECH Act received a significant amount of attention when it was introduced, the bill has not progressed beyond being introduced in the Senate. As a result, it remains unclear if the bill will have any better luck in Congress than previous attempts at changing Section 230.
