May 24, 2024 3 min read

Unserious attempt #1,562 to rollback Section 230

This week, the House Energy and Commerce Communications and Technology Subcommittee held a hearing on draft legislation that would sunset Section 230 of the Communications Decency Act. Their approach mimics the TikTok ban which gives the platform one year to sell itself to a non-Chinese company before it’s banned outright: under the bill’s timeline, tech companies will have 18 months to come up with something “better” than 230, or risk losing its liability protections completely.

The authors of the bill, Reps. Cathy McMorris Rodgers and Frank Pallone, don’t expect this bill to pass. It’s essentially a messaging bill they’re using to up the pressure on Big Tech. But Democrats cannot continue to play fast and loose with the legal framework that may be the Internet’s last line of defense against authoritarianism. If this bill or something like it passes, we’re near-guaranteed much weaker speech protections that will accelerate censorship at a dangerous moment in US politics.

Here’s some context about what Section 230 is and why it matters from an excellent op-ed written by Lia & Evan in 2022:

“Under Section 230, internet platforms that host and moderate user-generated content cannot generally be sued for that content. Section 230 is not absolute. It does not provide immunity if the platform develops or creates the content, and it does not provide immunity from the enforcement of federal criminal laws. But, crucially, it does protect against criminal liability from state laws.”

This is far from the first time that the nearly 30-year-old Section 230 has been used as a bargaining chip—somewhat understandable as it’s one of the few remaining ways that Congress knows it can threaten tech monopolies when so many attempts to fight their power have failed. Presidents from both major political parties have denounced 230, and many Congresspeople have tried to amend it. But when lawmakers use Section 230 to threaten tech companies, they also threaten free speech and the user-generated content that makes the Internet a groundbreaking tool for connection. Without those protections, profit-driven platforms will certainly take the path of least resistance and remove any user-generated content that could be deemed controversial. We all know what this means by now, right? Access to reproductive health and abortion information, LGBTQ+ resources, and all the lifelines that marginalized communities depend on would be on the chopping block.

Amending or sunsetting 230 would also have a major impact on the start-ups and small businesses that rely on the clear framework and protections of 230 to operate. As Carl Holshouser, executive vice president of TechNet, wrote in a letter to Congress, “Eliminating Section 230 would expose startups and small businesses around the country to a legal minefield based solely on user-generated content.” Kate Tummarello, the Executive Director of Engine, said during yesterday’s hearing that small businesses are concerned about sunsetting 230 because “there’s been so much discord between members of Congress generally about what should replace Section 230 that we worry we could get caught in a tug of war.”

From Trump to Biden, politicians are misguided in their belief that reforming Section 230 would help hold tech behemoths accountable and not pose a threat to free speech, but we know from experience that that’s completely untrue. Maybe if Congress listened to experts instead of toying with laws from the 90s, we could regulate tech companies rationally. We'll say it again and again: privacy legislation would be a great start.