Senate Democrats Renew Tech Liability Shield Overhaul Effort (1)

Big tech companies like Facebook, Twitter, and Google would lose some of their coveted legal liability shield over paid ads as well as harassing and discriminatory content under a Senate bill released by Democrats that could serve to reignite scrutiny of the protections.

Democratic Sens. Mark Warner (Va.), Mazie Hirono (Hawaii) and Amy Klobuchar (Minn.) on Friday introduced the Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms Act. The legislation would limit tech’s broad lawsuit protections first granted under Section 230 of the 1996 Communications Decency Act.

The legislation marks the first Democratic bill in the 117th Congress to go after the liability shield, which has been widely criticized by both Republicans and Democrats over frustration with how and when tech companies choose to moderate content on their platforms and enforce their own polices.

The bill would dramatically change the underlying law to limit companies’ liability protections by treating them as a publisher or speaker for any paid content on their platforms. That includes the paid advertising that makes up a significant portion of the profits for Alphabet Inc.’s Google, Twitter Inc. and Facebook Inc., narrowing the previous liability provisions to cover only third-party “speech” on the platforms, not the catchall term “information” in the original law.

It also stipulates that companies would be held liable for content falling within four existing legal categories: civil rights laws; antitrust laws; stalking, harassment or intimidation laws; and international human rights laws. The legislation would clarify that companies can be held liable for wrongful death actions, meaning families could sue platforms that may have directly contributed to a person’s death.

Victims could pursue injunctive relief, meaning they could seek court orders when a company fails to remove, restrict, or stop the dissemination of material “likely to cause irreparable harm.”

“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,” Warner said in a statement.

“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,” he said.

Sen. Richard Blumenthal (D-Conn.) welcomed the bill and said it aligns well with the bipartisan EARN IT Act, which he cosponsored last year with Sen. Lindsey Graham (R-S.C.) and was approved unanimously by the Senate Judiciary Committee. Both bills emphasize “accountability for big tech when real people are harmed on their platforms,” Blumenthal said in an email.

He said that he’s looking forward to working with Warner and their Republican colleagues, including Graham, to advance legislation to revamp Section 230.

Concerns on Censorship, Small Business Impacts

Republicans in Congress have largely raised concerns that Section 230 enables tech companies, such as Facebook and Twitter, to censor conservative speech, which the companies deny.

House Energy and Commerce Committee ranking member Cathy McMorris Rodgers (R-Wash.) released a memo last week prioritizing changes to Section 230 so that it’s either reauthorized by Congress over a set time period or sunsets. She said the ban of former President Donald Trump by Twitter and Facebook could lead to tech companies silencing “anyone else for having unpopular opinions.”

She also wrote to Chairman Frank Pallone (D-N.J.) on Friday asking the committee to call for the chief executives of Google, Facebook, Apple, and Twitter to testify before the committee.

Tech industry groups said that removing Section 230 liability protections will more negatively affect smaller companies that can’t afford costly and frivolous lawsuits.

The bill “guts” Section 230, according to Carl Szabo, NetChoice’s vice president and general counsel. “Not only would the bill chill free speech on the internet, it would also revoke Section 230 protections for all e-commerce marketplaces like Etsy,” Szabo said in a statement. NetChoice’s membership includes Google and Facebook.

Trade group CCIA, which also represents Google and Facebook, stressed that Section 230 gives the tech companies the right to remove offensive, obscene, dangerous, or extremist content without the risk of being sued. If such liability protections were removed, smaller companies would feel the brunt of the lawsuits, the group said.

Now that Democrats control the Senate, some form of the measure could make it to the floor, but any legislation would eventually require Republican support to reach the 60-vote threshold to overcome a procedural hurdle for a final vote.

To contact the reporter on this story: Rebecca Kern in Washington at rkern@bgov.com

To contact the editors responsible for this story: Zachary Sherwood at zsherwood@bgov.com; Giuseppe Macri at gmacri@bgov.com; Loren Duggan at lduggan@bgov.com