by Brenée Goforth
Communications Associate, John Locke Foundation
According to a recent article in Carolina Journal by Lindsay Marchello, U.S. Senator Josh Hawley, R-Missouri, has introduced legislation that would make it easier for consumers to sue big tech companies such as Facebook or Twitter for showing overt political bias by removing automatic protections tech companies have under Section 230 of the Communications Decency Act of 1996. Marchello writes:
Section 230 of the Communications Decency Act states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This means tech companies including Facebook or Twitter aren’t legally responsible for the content that appears on their sites.
The legislation, S. 1914, known as the Ending Support for Internet Censorship Act, would remove these automatic protections from large internet monopolies. Instead, Marchello reports:
[B]ig tech companies would have to undergo an audit every two years to receive immunity from the Federal Trade Commission. Big tech companies would have to prove to the FTC by clear and convincing evidence that their moderating algorithms are politically neutral. A supermajority vote from the FTC would be required to earn immunity.
If a company fails to pass these audits, their Section 230 immunity may be removed, making these companies potentially subject to lawsuits and criminal charges based on the contents of their users’ posts. In other words, companies like Facebook could be legally liable for the things people post on their platform. According to Hawley, the bill’s sponsor:
“This legislation simply states that if the tech giants want to keep their government-granted immunity, they must bring transparency and accountability to their editorial processes and prove that they don’t discriminate.”
However, these measures arguably could stifle innovation. John Sample, a vice president and director of the Center for Representative Government at the Cato Institute is quoted by Marchello as stating:
Section 230 kept the government out and allowed the internet to grow.
“Why would you want to wreck a company like Facebook that is a shining example of American innovation?”
JLF’s director of legal studies, Jon Guze, said that while it is reasonable to go back and reassess the 22-year-old provision, this may not be the perfect solution. Guze says:
“While I don’t like how these guys are curating their sites, that doesn’t mean I want Congress deciding which ones are allowed to go on curating and which ones aren’t… It’s a hard call.”
The Senate most recently referred the bill to the Committee on Commerce, Science, and Transportation.