The ongoing tensions in Washington over social media's immunity from liability for third-party content were, well, ongoing Wednesday (Oct. 16) as legislators heard from the leaders of iconic platforms who said such immunity was crucial, and those who said over broad legal interpretations necessitate legislative fixes.
Both sides used the opioid crisis to make cases for and against such immunity.
Specifically that came in testimony for a joint House Communications/Consumer Protection Subcommittee hearing, "Fostering a Healthier Internet to Protect Consumers."
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At issue is Sec. 230 of the Communications Decency Act, which shields the YouTubes and Reddits of the world from liability. Both sides of the aisle have issues with the section, but given the current political climate, agreeing on a way forward for targeted changes is a high hurdle.
In the wake of Russian election meddling, "real" fake news, sexual exploitation, and claims of social media platform censorship of speech, Washington is re-thinking Sec. 230.
Rep. Mike Doyle (D-Pa.), chairman of the Communications Subcommittee, said conceded it was a complex issue. "Clearly we all need to do better," he said, advising the social media platforms to "step up." But he also said the section allowed for conversations that enriched lives and democracy. He also pointed to the ability of people to post comments that speak truth to power, a power and value he said should not be underestimated.
Rep. Bob Latta (R-Ohio), ranking member of the Communications Subcommittee, said he was not advocating for the section's repeal, or even major revisions, but only the possibility of modest, nuanced changes.
Republicans are somewhat conflicted over the issue, concerned about Silicon Valley potentially censoring political speech they don't like, but also generally opposing government overregulation of large companies.
But Latta did say that the section's"good Samaritan" carvout for content moderation has been overbroadly interpreted to cover "bad Samaritans" as well.
Rep Jan Schakowsky (D-Ill.), chair of the Consumer Protection Subcommittee, said that online extremism--stalking, bullying, threats--is on the rise and that such spread is problematic and causes real harm that multi-billion dollar companies such as Facebook, Google and Twitter "can't or won't fix." She added that claims of vast immunity based on Section 230 would be a major unraveling of years of congressional intent.
Schakowsky said it was inappropriate to insert Sec. 230 liability protections into trade agreements with other countries. Rep. Greg Walden (R-Ore.), ranking member of the Energy & Commerce Committee, was not happy that Sec. 230 was being inserted by the Trump Administration into trade agreements without letting the committee know. He called that a problem and called on the Administration to start putting the committee in the loop.
Schakowsky said she was not talking about eliminating Sec. 230 either, but clearly wanted to look hard at changing it.
Testifying at the hearing were Katherine Oyama, global head of intellectual property policy, at Google; Reddit co-founder Steve Huffman; Danielle Keats Citron, law professor, Boston University; Corynne McSherry, legal director, Electronic Frontier Foundation; Hany Farid, professor, University of California, Berkeley; and Gretchen Peters, executive director, Alliance to Counter Crime Online.
Huffman told the legislators that Sec. 230 was a balanced approach that allowed his platform to flourish, while "incentivizing good faith attempts to mitigate the unavoidable downsides of free expression."
He said that talk about ending the liability immunity represented an existential threat to Reddit and would "destroy" what little competition there is. He said even targeted changes were problematic.
Without the ability to moderate content free from the threat of defamation suits, he said, Reddit might have to shut down some communities, citing a ripped from the headlines example. "Take the opioid epidemic, which has been raised in discussions about 230," he told the subcommittees. "We have many communities on Reddit where users struggling with addiction can find support to help them on their way to sobriety. Were there to be a carve-out in this area, hosting them may simply become too risky, forcing us to close them down."
Google's Oyama agreed, and pointed out that not only does Sec. 230 protect content on Web sites, but the ability to take down content as well. "[O]ur ability to take action on problematic content is underpinned by section 230," Oyama said. "The law not only clarifies where services can be held liable for third-party content, but it also creates the legal certainty necessary for services like ours to take swift action against harmful content of all types."
That ability is what some Republicans take issue with, arguing that liability immunity allows platforms to censor conservative speech their executives don't like.
Related: House Seeks USTR Input on Sec. 230
On the other side of the issue, Boston University professor Danielle Keats Citron said that while the section may have started out as a way to encourage social media as an opportunity to "work, speak and engage" online, it has morphed thanks to over broad legal interpretations from "shielding platforms from liability "when their moderation efforts have filtered or blocked too much or too little “offensive” or illegal activity, as lawmakers intended," to shielding them "even then they solicit illegal activities, deliberately leave up unambiguously illegal content that causes harm, and sell dangerous products."
She said Sec. 230 should be revised to "condition the legal shield on reasonable content moderation practices in the face of clear illegality that causes demonstrable harm."
Peters, of the Alliance to Counter Crime Online, agreed that courts had gone "over broad" as it were, and Congress needed to find "legal and financial incentives to hold tech firms accountable when they are knowingly or negligently facilitating illegal activity."
Peters also used the opioid crisis, but to make a very different point. She said that while Big Tech will try to convince Congress that illegal activity is confined to the dark web, but that the "surface web" provides similar anonymity. "We are in the midst of a public health crisis – the opioid epidemic – which is claiming the lives of more than 60-thousand Americans every year," she said. "Study after study by ACCO members and others have shown widespread use of Google, Twitter, Facebook and YouTube by an estimated 35-thousand illegal online pharmacies to market and sell fentanyl, oxycodone and other highly addictive, often deadly controlled substances to U.S. consumers, in direct violation of federal law."
She said her group had also tracked drug sales on Reddit. "It's everywhere," she said. "Why? Because there is no law that holds tech firms responsible, even when a child dies buying drugs on an internet platform." She asked the legislators to "[t]ry and imagine another industry that has ever enjoyed such an incredible subsidy from Congress: total immunity no matter what harm their product brings to consumers."
McSherry, from the Electric Frontier Foundation Focused on speech. She said they wanted elections free from manipulation and for women and marginalized communities to be able to speak freely online. "Chipping away at the legal foundations of the Internet is not the way to accomplish those goals," she said. "Instead, it is likely to backfire, to the detriment of all users but particularly to those who are most vulnerable to other forms of silencing."
She said EFF defends Sec. 230 because of "the role that the law has played in providing a megaphone to those who previously lacked one, and removing much of the gatekeeping that stifled social change, perpetuated power imbalances, and rendered marginalized voices susceptible to censorship."
She credited Sec. 230 with helping create an environment where movements can grow organically, "[M]ost vital modern activist movements—#MeToo, #WomensMarch, #BlackLivesMatter--are universally identified by hashtags," she said.
