Senate Democrats Target Section 230

Capitol Building

Senate Democrats are taking aim at social media sites' Section 230 content immunity in a new bill.

The Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms (SAFE TECH) Act would carve out several categories of content from Web sites' current Section 230 immunity from civil liability for most third-party content.

Also Read: Rep Clarke Preps Sec. 230 Civil Rights Bill

The bill is co-sponsored by Sens. Any Klobuchar (D-Minn.), Mark Warner (D-Va.), and Mazie Hirono (D-Hawaii).

It would not address the Republican's issues with what they said is disparate treatment of conservative content under the shield of Sec. 230. But it would get at what both sides argue is too broad immunity from foreseeable bad conduct.

"A law meant to encourage service providers to develop tools and policies to support effective moderation has instead conferred sweeping immunity on online providers even when they do nothing to address foreseeable, obvious and repeated misuse of their products and services to cause harm,” said Sen. Warner, a former tech exec and chairman of the Senate Select Committee on Intelligence.

It would allow websites to be held accountable -- and civilly liable -- for facilitating stalking, harassment, and civil rights violations.

According to a joint statement from the senators, the bill "clarifies" that Section 230 immunity:

· "Doesn’t apply to ads or other paid content – ensuring that platforms cannot continue to profit as their services are used to target vulnerable consumers with ads enabling frauds and scams;

· "Doesn’t bar injunctive relief – allowing victims to seek court orders where misuse of a provider’s services is likely to cause irreparable harm;

· "Doesn’t impair enforcement of civil rights laws – maintaining the vital and hard-fought protections from discrimination even when activities or services are mediated by internet platforms;

· "Doesn’t interfere with laws that address stalking/cyber-stalking or harassment and intimidation on the basis of protected classes – ensuring that victims of abuse and targeted harassment can hold platforms accountable when they directly enable harmful activity;

· "Doesn’t bar wrongful death actions – allowing the family of a decedent to bring suit against platforms where they may have directly contributed to a loss of life;

· "Doesn’t bar suits under the Alien Tort Claims Act – potentially allowing victims of platform-enabled human rights violations abroad (like the survivors of the Rohingya genocide) to seek redress in U.S. courts against U.S.-based platforms."

Also Read: Senate Will Launch Look at Sec. 230

The senators said the changes will not remove the immunity for all, or even most, content, pointing out that it was not imposing strict liability so "the current legal standards for plaintiffs still present steep obstacles." The idea is not to create open season on frivolous suits, which could threaten the content hosting model at the heart of Facebook and Twitter and others.

“Social media companies face criticism both for being too aggressive and insufficiently aggressive with respect to digital misinformation, said Computer & Communications Industry Association (CCIA) President Matt Schruers. "It’s important to remember that Section 230 both facilitates free expression online and allows companies to take appropriate action against bad actors without those bad actors being able to litigate their way back in front of users.”

CCIA members include Amazon , Facebook, Google and Twitter.

Fight for the Future, which has some big issues with Big Tech, particularly its use ite use of data and surveillance tech, said it "sadly" had to oppose the bill because, rather than the targeted changes the Democrats may have intended, it essentially guts Section 230. 

"We absolutely agree that Congress needs to take meaningful action to address the real world harm being done by Big Tech companies’ surveillance capitalist business models," said the group. "But unfortunately this bill, as written, would have enormous unintended consequences for human rights and freedom of expression. It creates a huge carveout in Section 230 that impacts not only advertising but essentially all paid services, such as web hosting and CDNs, as well as small services like Patreon, Bandcamp, and Etsy."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.