LOS ANGELES—New legislation from three Senate Democrats would create the broadest exceptions to online speech protections yet proposed.
After more than a year of threats to Section 230, the “First Amendment of the Internet,” under the Donald Trump administration, Democrats in the United States Senate have introduced a new bill to “reform” the 25-year-old law in ways that, according to one top free speech lawyer, appears to be “a new idea to destroy Section 230.”
Speaking February 11 at the #interNEXT2021 conference, attorney Corey Siverstein said that the proposed law would “rewrite all of Section 230, and if you are in any way making money in relation to something being posted, you would have no ability to assert Section 230.”
Section 230 is the passage in the 1996 Communications Decency Act that protects online platforms from legal responsibility over user posts — a provision that is important for any type of free expression on the internet, but in particular for adult content which is the frequent target of censorship.
But what is this new proposed law? A law that would — as Eric Goldman of the Technology & Marketing Law Blog put it — “could disrupt the Internet we know and love,” and “reshape the Internet dramatically, in ways that would stun and anger most Americans.”
Introduced in January by Senators Mark Warner of Virginia, Mazie Hirono of Hawaii, and Amy Klobuchar of Minnesota — all Democrats – the “Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms Act,” or Safe TECH, at would create six new exceptions to Section 230 protections, that is, cases in which an internet provider or platform would indeed be legally liable for third-party content.
Currently, there are four recognized exceptions to Section 230’s free-speech shield. Most notably, in 2018, Congress passed the FOSTA/SESTA law, which carves out an exception for posts that allegedly promote “sex trafficking.”
The law also does not apply to Intellectual Property claims, federal and state privacy law claims, and federal criminal cases. But the Safe TECH Act creates another six exemptions, as well as three types of actions taken by an online platform that would cause it to forfeit its protections. The wide-ranging new carve-outs would have the effect of crippling Section 230 to the point where the law could be rendered ineffective.
Perhaps the most significant change to Section 230 that would be imposed by Safe TECH is a provision that would strip protections in cases where, the bill says, “the provider or user has accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech.”
While a tweet by Warner appeared to say that the provision was aimed at online advertising, which he called “a key vector for all manner of frauds and scams,” the language of the bill itself makes no such specification.
“A good lawyer could argue that this covers many different types of arrangements that go far beyond paid advertisements,” U.S. Naval Academy cybersecurity law professor Jeff Kosseff told the site TechCrunch. “Platforms accept payments from a wide range of parties during the course of making speech ‘available’ to the public. The bill does not limit the exception to cases in which platforms accept payments from the speaker.”
The provision could apply directly to adult sites, which accept payment for subscriptions or memberships that allow them to make their content available.
“Just about everything you can imagine is commercial in some way, unless they’re posting pet videos or grandparents visiting their grandchildren,” said First Amendment attorney Lawrence Walters, at the #interNext2021 panel, going on to call the Safe TECH Act as “dumpster fire.”
In addition to the exception for accepting payment, the law would also create exceptions to Section 230 for claims of cyberstalking and harassment, as well as for wrongful death and antitrust actions — and gotr cases in which a platform fails to remove content “that is likely to cause irreparable harm.” How such the “irreparable harm” of any particular content would be determined is not made clear by the bill.
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