Last Minute Moves on Section 230 Would Be Selling Out Startups
TLDR: As the year winds down, Republican policymakers are making multiple eleventh-hour attempts to undermine a foundational Internet law that has drawn the ire of President Donald Trump in the lead up to and aftermath of the 2020 election. This week, the Senate Judiciary Committee is slated to consider a bill to reform Section 230—the law that creates intermediary liability limitations for online services that host user-generated content—and the Trump administration is reportedly threatening to veto the annual defense authorization bill if it does not include Section 230 reforms.
What’s Happening This Week: After months of unsubstantiated claims about anti-conservative bias by social media companies, Trump and some Republican lawmakers this week are ramping up efforts to repeal or reform Section 230. The bedrock Internet law provides critical liability limitations for companies of all sizes to host and moderate user-generated content, but Trump and his Republican allies falsely claim that the law allows a handful of big tech companies to “censor” user speech. They largely ignore the many ways in which companies and services across the Internet—from comment sections on newspapers’ websites, to private messaging apps, to e-commerce sites, and more—rely on the law, including to create opportunities for users’ speech.
The latest effort to repeal Section 230 comes after the White House reportedly offered to support a provision in the fiscal year 2021 National Defense Authorization Act (NDAA) to rename U.S. military bases named after Confederate generals if Congress agreed to a repeal of Section 230. Senate Republicans, however, are reportedly trying to negotiate a compromise that could incorporate several bills modifying Section 230 into the NDAA. Also this week, the Senate Judiciary Committee is planning to hold a markup on Thursday of the Online Content Policy Modernization Act (OCPMA)—legislation from Committee Chairman Lindsey Graham (R-S.C.) that would increase opportunities for abusive copyright litigation and make it easier to sue startups into bankruptcy as a result of their content moderation practices. The markup comes after a hearing last month where many Republican members of the committee accused Twitter and Facebook of censoring Republicans, including Trump.
Why it Matters to Startups: While President Trump and Republican lawmakers have framed their criticisms of Section 230 around a few high profile content moderation decisions by the largest tech companies—most recently around decisions from Twitter and Facebook to demote or remove controversial New York Post stories about President-elect Joe Biden’s son in the run-up to the election—any changes to the law as a result of these partisan attacks would have an outsized impact on smaller tech companies and their users.
Ultimately, Congress cannot change Section 230 to address the core of Republicans’ complaints about alleged censorship. Internet companies have their own First Amendment rights, as well as contracts with users about acceptable uses of their services, that protect the companies’ ability to host and moderate lawful user-generated content. Section 230 merely ensures that companies can’t be easily threatened with ruinous, bad-faith lawsuits over their hosting and moderation decisions. If an Internet company is sued over user-generated content, it can assert Section 230 liability limitations early on in the lawsuit, bringing the potential costs of that suit from hundreds of thousands of dollars down to tens of thousands of dollars—a figure that would still be crippling to most startups. Without the liability limitations codified in Section 230, startups with business models relying on user-generated content—a category that extends far beyond social media—would have a much harder time attracting funding and launching with the threat of bankruptcy-inducing litigation hanging over their heads. Proposals to amend Section 230 to address alleged censorship simply seek to weaponize private lawsuits that would ultimately fail, but would still be a tool to bully Internet companies into hosting the kind of content certain Republican officials want to keep online.
One such proposal—the bill in front of the Senate Judiciary Committee on Thursday—would limit the kinds of content moderation companies can engage in if they want Section 230’s liability limitations. As we’ve noted, the OCPMA would force Internet companies to choose between facing expensive and potentially ruinous lawsuits, or leaving up harmful user-generated content that they would otherwise remove. At a time when public health and election misinformation are spreading online and threatening real-life health and safety, policymakers should be incentivizing companies of all sizes to engage in content moderation that protects users—not proposing prescriptive limitations around what kind of content moderation practices are politically acceptable enough to justify Section 230’s liability limitations.
While the clear goal of these proposals and the subject of Trump’s recent rants have been the largest social media companies, changing Section 230—especially as envisioned by these current Republican proposals—would ensure that only the largest, wealthiest companies can afford to host and moderate user-generated content. For a group of policymakers allegedly concerned about protecting and boosting competition in the Internet ecosystem, amending Section 230 in ways that will disproportionately harm smaller competitors should be a non-starter.
Republicans in the administration and in Congress are frustrated that private companies are exercising their rights and taking steps to protect their users, including by demoting, removing, and fact-checking content. They should not be able to take out that frustration by trading away a foundational law with wide-reaching consequences through backroom deals on end-of-year, must-pass legislation. The consequences of amending Section 230 go far beyond the president’s frustration with three large social media companies. Lawmakers need to be serious and thorough if they want to reform the law, and that should include considering the perspective of startups across the country that host all kinds of content and appeal to all types of users.
On the Horizon.
The Senate Commerce Committee is scheduled to vote tomorrow at 10 a.m. on the nomination of Nathan Simington to the Federal Communications Commission.
Georgetown Law is hosting a book launch tomorrow at 4 p.m. for Common Sense Media’s compilation of essays on “How Technology is Reshaping Democracy and Our Lives.”
The Wilson Center is holding a conversation with Senate and House staff from the AI Caucuses this Thursday at 11 a.m. to discuss artificial intelligence policy proposals and what to expect in the 117th Congress.
USTelecom is holding a Broadband Investment Forum this Thursday at 1 p.m. to discuss policy approaches for improving Internet connectivity across the United States.
