Section 230, the linchpin law that has dictated how online platforms have been regulated for decades, appears destined to come to an end. According to The Information, Democratic Senator Dick Durbin and Republican Lindsey Graham are planning to introduce a new bill that will set an expiration date for the law and encourage tech companies to offer alternatives as to what should replace it.
Per The Information, the bill could be introduced as early as Monday, March 24, and is expected to have bipartisan support from Republicans Josh Hawley and Marsha Blackburn and Democrats Sheldon Whitehouse and Amy Klobuchar, who are reportedly ready to co-sponsor the bill. It’s also a modified version of a proposal made last year in the House by Republican Cathy Rodgers and Democrat Frank Pallone, Jr., so there is some juice for this thing throughout Congress. The proposal would effectively sunset Section 230, setting January 1, 2027, as a drop-dead date for the law that so many tech companies have leaned on to duck legal challenges.
The gambit that Durbin and Graham appear to be attempting is to force tech companies to the table and talk about Section 230 alternatives. By setting a deadline, the message is basically, “Come help us write the replacement law or lose this protection in its entirety.” The latter should be basically an intolerable outcome for tech firms, as it would leave them extremely exposed to legal challenges.
Section 230 of the Communications Decency Act, as it stands, essentially grants companies legal immunity from being held legally liable for the content posted on their platforms by users. It is often referred to as the “26 words that created the internet” because it created a framework for user-generated content. But its legal protection of companies has come under fire from both major political parties for very different reasons.
Democrats have come after Section 230 for allowing Big Tech companies to be derelict in their duties to remove harmful and hateful content, falling short of the “Good Samaritan” standard of good faith moderation. Scrutiny from the left turned up during the COVID pandemic when misinformation was rampant on platforms like Facebook and some Democrats wanted the company to do more to address the issue. Republicans, meanwhile want Section 230 repealed because they believe tech companies have been overzealous in removing content and think their viewpoints have been “censored.” It’s here where you can see the cracks start forming in this bipartisan effort.
There is probably room to reevaluate the protections granted under Section 230. After all, it was written in 1996 when the internet was in its nascent stages and the monopolistic forces of companies like Meta or YouTube would have been hard to imagine. For instance, it might be worth asking, even if platforms shouldn’t be held liable for what random users post, should they be held liable for algorithmically promoting that content if it is illegal or harmful?
But that brings us back to the fundamental divide between the two parties invested in upending Section 230. They can agree that they want to roll it back. But their goals in doing that are diametrically opposed. If the parties agree to repeal Section 230 but can’t come to an agreement on what should come next, you end up with the worst of all worlds. Frankly, with this Congress and President, that seems about par for the course.
