On Tuesday, July 28th, Missouri Senator Joshua Hawley introduced a bill to limit protections for companies that “display manipulative, behavioral ads or provide data to be used for them.” Hawley’s bill, aimed at Twitter and other ‘Big Tech’ companies, is the latest attempt to chip away at the protections for Internet companies that publish user-generated content.
Section 230 of the 1996 Communications Decency Act, passed in the early days of the Internet, provides immunity to websites that host or republish content created by third-parties. Since the Act’s passing, companies like Google, Facebook, Tumblr, Twitter, Reddit, Craigslist, YouTube, Instagram, eBay, and Amazon — which rely in large part on content provided by their users – have prospered.
In recent years, however, limitations have been placed on the Act. In 2018, largely in response to advertisements on Backpage.com that allegedly promoted prostitution, Congress passed SESTA/FOSTA, which creates an exception to Section 230 for websites that publish user-generated content that “promotes or facilitates” prostitution or sex trafficking. In addition, before the Act even took effect, one court held that Backpage was not immune under Section 230,[1] and this April, without relying on the Act, another court held that Craiglist had no immunity for its publication of third-party ads for escort services.[2]
In May of 2020, President Trump signed an executive order that would make social media sites liable when they moderate allegedly harmful content — the very activity Section 230 was passed to protect. Although its legal status is dubious, FCC Chairman Ajit Pai has invited the public to comment on the order. Not to be outdone, Congress has jumped in with the Platform Accountability and Consumer Transparency Act (the “PACT” Act), which would require companies relying on Section 230 to publicly document their moderation practices, report moderation decisions within fourteen days of user complaints, and remove court-ordered illegal activity within twenty-four hours. And Democrat Presidential candidate Joe Biden has called for Section 230’s repeal, labeling the billionaires who run tech companies, “little creeps,” who spread false information.
Leaving aside that publishing false information, by itself, is not unlawful — the First Amendment requires a showing of harm, as well as fault on the part of the publisher — it is clear that the political winds are shifting, and the protections afforded by Section 230 may soon be numbered.
[1] See Florida Abolitionist v. Backpage.com LLC (M.D. Fla., March 31, 2018)
[2] See M.L.. v. craigslist, Inc., (W.D. Wash. 2020).