WASHINGTON—Lawmakers from both major parties in the U.S. House of Representatives are pressing their colleagues to adopt a measure that would sunset safe harbor provisions in Section 230 of the Communications Decency Act of 1996. U.S. Reps. Cathy McMorris Rodgers, R-Wash., and Frank Pallone, D-N.J., introduced the measure, sparking rampant concerns.
McMorris Rodgers is the chair of the House Energy and Commerce Committee. Pallone is the ranking member. As the two senior members of their parties on the committee, their bill carries significant weight and has been welcomed by supporters as a measure to reign in large technology companies, such as Google and Meta Platforms, for not protecting minors.
"Big tech companies are exploiting the law to shield them from any responsibility or accountability as their platforms inflict immense harm on Americans, especially children," argued McMorris Rodgers and Pallone in an op-ed they co-authored for the Wall Street Journal that was published on May 12. On May 22, McMorris Rodgers and Pallone held a hearing of the communications and technology subcommittee covering the McMorris Rodgers-Pallone "Legislative Proposal to Sunset Section 230 of the Communications Decency Act."
The hearing was held to discuss the legislation and hear from stakeholders. No substantial action on the measure has yet to be taken.
The legislative proposal's language is very concise. It asks Congress to sunset Section 230, which in legal vernacular refers to a provision that automatically terminates a law after a set amount of time. The proposal simply amends Section 230 by tacking on a sunset provision. If adopted, Congress would be given 18 months to adopt a new framework to replace legal liability shields for user-generated content on the internet or lose the liability protection web platforms have enjoyed since the U.S. Supreme Court affirmed the law's constitutionality.
“Our goal is not for Section 230 to disappear,” McMorris Rodgers said during the hearing via The Verge. “But the reality is that nearly 25 bills to amend Section 230 have been introduced over the last two Congresses. Many of these were good-faith attempts to reform the law, and big tech lobbied to kill them every time. These companies left us with no other option.”
Before and during the hearing, industry and civil society stakeholders criticized McMorris Rodgers, Pallone and their committee colleagues for backing such a bill. In a coalition letter sent to the committee, evangelists for Section 230 said that the sunset measure "fails to recognize the indispensable role that Section 230 plays in fostering a diverse and innovative digital landscape across many industries that extends far beyond the realm of only large technology corporations." Note that the coalition of organizations that sent this letter includes the Consumer Technology Association, the American Library Association, the Wikimedia Foundation, the Internet Society, and the Internet Archive, among others. The coalition letter explains: "By narrowly framing the debate around the interests of 'Big Tech,' there is a risk of misunderstanding the far-reaching implications of altering or dismantling Section 230."
Others critical of the sunset bill are concerned eliminating Section 230 could lead to legislative and legal chaos. For example, a letter to the committee signed by legal academics that was sent from TechFreedom says that repealing the safe harbor law would allow politicians to dictate partisan-leaning content moderation. "The First Amendment does not render Section 230 unnecessary for a free and open internet," argue the legal academics in the letter, led by Ari Cohn's signature. Ari Cohn is TechFreedom's in-house free speech counsel.
"But it does constrain Congress’s ability to shape content moderation to its liking—whether by penalizing platforms for leaving up protected expression that Congress deems harmful, or by punishing them for moderating objectionable content," the academics argue. Other groups opposed to the sunset proposal include the Electronic Frontier Foundation, NetChoice, the Computer & Communications Industry Association, Engine and TechNet. Conservative groups like the Competitive Enterprise Institute and Americans for Tax Reform also oppose the bill.
"I reject Big Tech’s constant scare tactics about reforming Section 230," Pallone argued in a press release after the hearing and letters were submitted to the subcommittee's docket. "Reform will not 'break the internet' or hurt free speech. The First Amendment—not Section 230—is the basis for our nation’s free speech protections, and those protections will remain in place regardless of what happens to Section 230." Pallone, a lawyer, provides a perspective that literally dozens of organizations and companies regard as facially wrong. For Corey Silverstein, an attorney who specializes in representing adult industry companies in cases that often deal with Section 230 protections, Pallone's opinion of the law is "shortsighted."
