While Our Country Is Engulfed By Urgent Must-Solve Problems, Congress Is Working Hard to Burn Down Section 230

This post will be unusually blunt about my disenchantment with the state of our country, a topic I don’t normally discuss on the blog. Some of you will not like this post. I expect my next post will feel more normal; but if you conclude that you no longer wish to read my blog, I thank you for your past readership.

In case it isn’t obvious, I am voting, without reservation, for Biden in November. I know he has said he wants to revoke Section 230, immediately. We need Section 230, but we need a change in president even more.

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Until recently, I could track and blog all of the Congressional proposals to amend Section 230. The high volume of recent proposals has overwhelmed my capacity. Instead of full blog posts on each proposal, this post will take a snapshot of the craziness taking place in DC. It is one terrible proposal after another. Even more shocking, Congress is investing so much into Section 230 reform when many other problems urgently need attention. I want to contextualize these critical policy challenges demanding Congress’ attention so we can see the misalignment of Congress’ priorities and investment.

The Challenges Facing Congress

Our country faces massive structural problems. The top four issues I want Congress to prioritize RIGHT NOW:

• The COVID19 pandemic, which has numerous major sub-issues: controlling the virus’ spread; caring for infected people; accelerating vaccine development; rehabilitating the institutions affected by the associated shutdowns (businesses, government functions, educational institutions, and more); dealing with the long-term physical, psychological, and personal development consequences of the virus and shutdown on children (such as the disruptions in children’s socialization and education); helping people through the financial consequences of the virus and shutdown; and rebuilding our devastated economy. Congress can helpfully intervene in all of these sub-issues. Meanwhile, the administration’s actions have made it clear that they do not care how many Americans die. COVID19 has already claimed 4M+ infected and 150,000+ dead Americans, and large percentages of both populations were avoidable with better government management of the crisis. If the executive branch isn’t prioritizing the health and safety of our country, then Congress must oversee that work more carefully.
• Election integrity, another pandemic-related issue because remote voting options are essential to public health. More generally, I fear that elections don’t reflect the people’s true sentiments due to voter suppression, where literally millions of voters are deterred from voting or disenfranchised entirely. Voter suppression can help minority interests remain in power and a pervasive feeling that our government’s priorities do not truly reflect the will of the people. In addition, President Trump has already started (and will never stop) casting doubt on the upcoming election’s integrity–a process that’s accelerating because he trails badly in the polls. (Ironically, his criticisms ensure that any miraculous upset win he pulls off would be tainted as well). Doubts about election integrity ensure that the election losers will contest the results in the court of popular opinion (and perhaps in judicial courts). Hardening our election system against these inevitable criticisms is an essential and immediate requirement to preserving confidence in our democracy. As measures of how we’re currently doing on that front, the Federal Election Commission is again non-functional (it lacks enough members for quorum) and our postal system may not properly handle mail-in voting.
• Black Lives Matter/racial injustice/loss of faith in law enforcement. We’ve always had a two/multi-tier justice system, but privileged communities have often overlooked it. Now, everyone, including the privileged, can’t ignore the recent craziness–such as the senseless murder of George Floyd and so many others (a phenomenon we can see more now with the help of social media); the flood of evidence showing how many law enforcement officers express racist and discriminatory personal views on social media; and the repeated gassing, shooting, physical abuse, and abduction of peaceful and lawful protesters. We’ve also learned that the president controls a range of law enforcement officers and mercenaries who violate the rule of law. For privileged folks, these abuses look a lot like fascism. For less privileged folks, this looks like the everyday underside of America’s veneer of the rule of law. Either way, a widening circle of Americans are questioning if law enforcement works for us or seeks to oppress us. Congress urgently needs to pull us back from the brink of fascism we seem to be teetering on; and to ensure that all Americans, not just the privileged, feel like law enforcement actually keeps them safe.
• Destruction of the rule of law. The president acts as if he is above the law because, indeed, he has gotten away with countless violations already. The result has been daily affronts to the values we used to take as given–that the president would try to represent all of his/her constituents, not just his “base”; that the president would actually try to comply with the law, not view it as optional; that the president and other government employees would not repeatedly and brazenly engage in self-dealing, grifting, and looting of the public treasury; that the president would not fire other members of the government to interfere with their investigations of his conduct; that the president won’t dole out benefits (like pardons) on a quid-pro-quo basis; and so much more. It’s impossible to track all of these violations. Nevertheless, Congress could and should be doing more to keep these violations in the public eye, or its acquiescence normalizes the deviant behavior. Congress also needs to harden our government against future presidents, and everyone they appoint, who are disloyal to the constituents they are supposed to serve.

I could enumerate many other concerns that, by themselves, would be presidency-ending scandals if Congress were properly supervising the executive branch, e.g., the allegations that Russian has bounties on the heads of American soldiers; the horrors of separating children from their parents at the border purely for punitive purposes; the illogical and counterproductive efforts to block foreigners (such as students) from coming to this country; and so many more.

I’m overwhelmed by the work we have to do to, in fact, make America great. Each of the bulleted issues could itself easily consume all of Congress’ capacity. Collectively, Congress should be completely consumed with urgent must-do-now priorities.

This is why Congress’ work on Section 230 is so baffling. Despite its lengthy list of priorities, Congress apparently has enough capacity to produce a deluge of new Section 230 reform bills:

Section 230 Reform Bills Pending in This Session

EARN IT Act (S. 3398, Graham & Blumenthal). Following a manager’s amendment, the bill passed the Senate Judiciary Committee unanimously and is ready for a vote by the full Senate. The bill basically eliminates Section 230 for any CSAM-related claims. I still plan to blog the version passed by the SJC. [UPDATE: here it is]. My prior blog posts on the bill on introduction and on a pre-introduction draft.

PACT Act (S. 4066, Schatz & Thune). The bill would eliminate Section 230 for most court orders and federal government claims under federal civil law. It would also impose a variety of procedural obligations on UGC sites’ editorial practices. Prior blog post.

Stop the Censorship Act (H.R. 4027, Gosar). This bill would amend Section 230(c)(2) so it applies only to “unlawful” content. Prior blog post. Rep. Gosar recently modified and reintroduced the bill as the “‘Stop the Censorship Act of 2020” (H.R. 7808).

Ending Support for Internet Censorship Act (S. 1914, Hawley). This bill would provide Section 230 immunity for large services only if the Federal Trade Commission certifies that they engage in politically neutral editorial practices. Prior blog post.

PLAN Act (H.R. 4232, Case). The bill would remove Section 230 for the facilitation of illegal real estate leases/subleases. Prior blog post.

Stopping Big Tech’s Censorship Act (S. 4062, Loeffler). The bill would amend Section 230 to apply only when UGC sites take reasonable measures to prevent unlawful content. It also requires viewpoint neutrality, imposes disclosure obligations on UGC sites in their TOSes and after restricting content, and removes Section 230’s immunity for federal government enforcement of federal civil laws. (Some of these provisions overlap with the PACT Act).

BAD Ads Act (Hawley). The bill would eliminate Section 230 for large sites that engage in behavioral advertising.

Limiting Section 230 Immunity to Good Samaritans Act (S. 3983, Hawley). The bill would require large “edge providers” to adopt a TOS provision saying they operate the service “in good faith,” and any violations would lead to a minimum of $5,000 in civil damages. The bill defines “good faith” as when “the provider acts with an honest belief and purpose, observes fair dealing standards, and acts without fraudulent intent.”

Biased Algorithm Deterrence Act of 2019 (H.R. 492, Gohmert). The bill says a social media service would lose Section 230 if it presents content in any way other than chronological order.

Other Bills Related to Section 230

SAFE SEX Workers Study Act (S. 3165/H.R. 5448, Warren & Khanna). The only meritorious bill on this list. This law would study the effects of FOSTA–something that should have been done before passing the law, but better late than never.

INFORM Consumers Act (S. 3431/House equivalent, Cassidy, Durbin & Purdue, and Schakowsky). The bill would require online marketplaces to verify high-volume sellers, who will have to disclose identifying information in their product listings.

COOL Online Act (S. 3707, Baldwin, Scott, Murphy, & Loeffler). The bill would require online retailers to display country of origin information in online product listings. It would amend Section 230 so that online marketplaces qualify only if they rely in good faith on the seller’s representations.

SHOP SAFE Act (H.R. 6058, Nadler & others). This bill would partially overturn Tiffany v. eBay. An “electronic commerce platform” would be contributorily liable for counterfeit goods “that implicate health and safety” unless it complies with ten different content moderation requirements dictated by the bill.

SANTA Act (S. 3073, Cassidy, Menendez, & Tillis). The bill would require online marketplaces to verify toy sellers.

SHIELD Act (S. 2111/H.R. 2896, Harris & Speier). The bill proposes to create a new federal crime for disseminating nonconsensual pornography. Although Section 230 wouldn’t apply to the federal crime, a UGC site would be liable only if it “intentionally solicits, or knowingly and predominantly distributes, content that the provider of the communications service actually knows is in violation of this section.”

Other DC Initiatives to Destroy Section 230

Trump’s Anti-Section 230 Executive Order. Trump’s EO from May had little direct legal consequence, though it fertilized the ground for additional bad policy ideas to take root. Prior blog post.

NTIA Petition to the FCC. Normally we expect a government agency like NTIA to provide an intellectually honest assessment of the pros/cons of its actions and not engage in brazen partisan advocacy. Not any more. This petition reads like an appellate brief that would get a C- in a 1L legal writing course. It demonstrated a poor understanding of the facts, the law, and the policy considerations; and it ignored obvious counterarguments. The petition is not designed to advance the interests of America; it is designed to burn it all down. I hope the FCC will reject it, but even in that case, malefactors will cite NTIA’s petition in support of their deliberate misrepresentations of Section 230.

DOJ Section 230 Palooza. The DOJ issued an anti-Section 230 screed that also deserves all of the criticisms I directed towards the NTIA petition, but more so. It’s a smorgasbord of partisan policy ideas designed to burn down Section 230 a dozen different ways. The DOJ has so much work to do to rehabilitate its public image after AG Barr leaves.

What’s Next?

Personally, I cannot wrap my head around Congress’ commitment to “fix” Section 230 for at least three reasons. First, as mentioned above, Congress clearly has higher priorities. Second, we rely more than ever on Section 230 to enable critical services during the shutdown. Without a robust and dynamic UGC ecosystem, the shutdown would have inflicted much more damage on our society and our economy. It is counterproductive to target the law that facilitates this virtual bridge for our society when we need it most. Third, Congress rarely passes foresighted and well-constructed technology policies. It’s tragic that Congress has stopped trying to build such policies; at this point, all it can do is tear down one of its most successful tech policy achievements of the past 25 years.

Due to Congress’ August recess and the pre-election frenzy, there may not be time for the bills to pass this session. Based on where we’re at now, that would be the best outcome. There are less likely, but darker, possibilities, such as lame-duck activity or one or more bills grafting onto a must-pass law.

Even if it does not happen this session, it’s clear that Congress will feel compelled to do something about Section 230. Whoever it is, the president in 2021 has championed Section 230’s repeal; all those Congressional staffers haven’t worked hard on eviscerating Section 230 to come up empty; and there are bill-combining/coalition-forming possibilities that could produce a Frankenstein bill that could pass. (Recall that the CDA/230 was a Frankenstein combination, as was FOSTA-SESTA). This is one reason why some Section 230 defenders squinted to find positive aspects of the PACT Act, because if the alternatives are so much worse and something inevitably will pass, go with the least worst option, amirite? Honestly, if the PACT Act drafters had picked one or two policy ideas, instead of the overstuffed dozen ideas in the bill now, they might have quickly assembled a successful coalition.

I fear that Congress will inevitably pass a truly destructive Section 230 reform, and we will move even more rapidly towards the Netflix-ization of the Internet. By the end of 2021, I wonder if we will look back at Congress’ “accomplishments” and feel like this:

Many Americans assume that members of Congress are fighting to protect what we love most about the Internet. The reality is that so many politicians are doing the exact opposite. If you are the constituent of one of the Congressmembers responsible for a bill on this list, TELL THEM HOW YOU FEEL.