The SAFE TECH Act proposes Section 230 reform, but law’s defenders warn of major side effects

The first major Section 230 reform proposal of the Biden era is out. In a new bill, Senate Democrats Mark Warner, Mazie Hirono and Amy Klobuchar propose changes to Section 230 of the Communications Decency Act that would fundamentally change the 1996 law widely credited with cultivating the modern internet.

Section 230 is a legal shield that protects internet companies from the user-generated content they host, from Facebook and TikTok to Amazon reviews and comments sections. The new proposed legislation, known as the SAFE TECH Act, would do a few different things to change how that works.

First, it would fundamentally alter the core language of Section 230 — and given how concise that snippet of language is to begin with, any change is a big change. Under the new language, Section 230 would no longer offer protections in situations where payment was involved.

Here’s the current version:

“No provider or user of an interactive computer service shall be treated as
the publisher or speaker of any information speech provided by another
information content provider.”

And here are the changes the SAFE TECH Act would make:

No provider or user of an interactive computer service shall be treated as
the publisher or speaker of any speech provided by another
information content provider, except to the extent 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.

(B) (c)(1)(A) shall be an affirmative defense to a claim alleging that an interactive computer service provider is a publisher or speaker with respect to speech provided by another information content provider that an interactive computer service provider has a burden of proving by a preponderance of the evidence.

That might not sound like much, but it could be a massive change. In a tweet promoting the bill, Sen. Warner called online ads a “a key vector for all manner of frauds and scams” so homing in on platform abuses in advertising is the ostensible goal here. But under the current language, it’s possible that many other kinds of paid services could be affected, from Substack, Patreon and other kinds of premium online content to web hosting.

“A good lawyer could argue that this covers many different types of arrangements that go far beyond paid advertisements,” Jeff Kosseff, a cybersecurity law professor at the U.S. Naval Academy who authored a book about Section 230, told 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.”

Internet companies big and small rely on Section 230 protections to operate, but some of them might have to rethink their businesses if rules proposed in the new bill come to pass. Oregon Senator Ron Wyden, one of Section 230’s original authors, noted that the new bill has some good intentions, but he issued a strong caution against the blowback its unintended consequences could cause.

“Unfortunately, as written, it would devastate every part of the open internet, and cause massive collateral damage to online speech,” Wyden told TechCrunch, likening the bill to a full repeal of the law with added confusion from a cluster of new exceptions.

“Creating liability for all commercial relationships would cause web hosts, cloud storage providers and even paid email services to purge their networks of any controversial speech,” Wyden said.

Fight for the Future Director Evan Greer echoed the sentiment that the bill is well intentioned but shared the same concerns. “… Unfortunately this bill, as written, would have enormous unintended consequences for human rights and freedom of expression,” Greer said.

“It creates a huge carveout in Section 230 that impacts not only advertising but essentially all paid services, such as web hosting and CDNs, as well as small services like Patreon, Bandcamp, and Etsy.”

Given its focus on advertising and instances in which a company has accepted payment, the bill might be both too broad and too narrow at once to offer effective reform. While online advertising, particularly political advertising, has become a hot topic in recent discussions about cracking down on platforms, the vast majority of violent conspiracies, misinformation, and organized hate is the result of organic content, not the stuff that’s paid or promoted. It also doesn’t address the role of algorithms, a particular focus of a narrow Section 230 reform proposal in the House from Reps. Anna Eshoo (D-CA) and Tom Malinowski (D-NJ).

New exceptions

The other part of the SAFE Tech Act, which attracted buy-in from a number of civil rights organizations including the Anti-Defamation League, the Center for Countering Digital Hate and Color Of Change, does address some of those ills. By appending 230, the new bill would open internet companies to more civil liability in some cases, allowing victims of cyber-stalking, targeted harassment, discrimination and wrongful death to the opportunity to file lawsuits against those companies rather than blocking those kinds of suits outright.

The SAFE Tech Act would also create a carve-out allowing individuals to seek court orders in cases when an internet company’s handling of material it hosts could cause “irreparable harm” as well as allowing lawsuits in U.S. courts against American internet companies for human rights abuses abroad.

In a press release, Sen. Warner said the bill was about updating the 1996 law to bring it up to speed with modern needs:

“A law meant to encourage service providers to develop tools and policies to support effective moderation has instead conferred sweeping immunity on online providers even when they do nothing to address foreseeable, obvious and repeated misuse of their products and services to cause harm,” Warner said.

There’s no dearth of ideas about reforming Section 230. Among them: the bipartisan PACT Act from Senators Brian Schatz (D-HI) and John Thune (R-SD), which focuses on moderation transparency and providing less cover for companies facing federal and state regulators, and the EARN IT Act, a broad bill from Sen. Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) that 230 defenders and internet freedom advocates regard as unconstitutional, overly broad and disastrous.

With so many proposed Section 230 reforms already floating around, it’s far from guaranteed that a bill like the SAFE TECH Act will prevail. The only thing that’s certain is we’ll be hearing a lot more about the tiny snippet of law with huge consequences for the modern internet.

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