OK to change Section 230, Facebook and Twitter CEOs say, but how remains elusive

Mark Zuckerberg and Jack Dorsey say they may go along with tweaks to their liability shield, but reject dropping it altogether

Jack Dorsey, CEO of Twitter, testifies remotely as Sen. John Kennedy, R-La., looks at his iPad during the Senate Judiciary Committee hearing on Tuesday about social media and the election. (Bill Clark/CQ Roll Call)
Jack Dorsey, CEO of Twitter, testifies remotely as Sen. John Kennedy, R-La., looks at his iPad during the Senate Judiciary Committee hearing on Tuesday about social media and the election. (Bill Clark/CQ Roll Call)
Posted November 17, 2020 at 4:22pm

Senators from both parties and the chief executive officers of Facebook and Twitter all agreed at a hearing Tuesday that an embattled 1996 law protecting social media and other online companies from lawsuits is overdue for legislative alteration.

And yet changes to the law, known as Section 230, continued to appear as far off as ever because of disagreements between Republicans and Democrats over the problem that legislation to change Section 230 would attempt to solve.

The hearing of the Senate Judiciary Committee was billed as a debrief of actions taken by Facebook and Twitter following the presidential election, including labels they placed on posts containing false information by President Donald Trump and his allies.

Democrats on the committee questioned the effectiveness of those labels and accused the companies of profiting off the proliferation of disinformation, hate speech and violent content on their sites.

“You have profited hugely by strip-mining data about our private lives and promoting hate speech and voter suppression,” said Sen. Richard Blumenthal, D-Conn. “You have an immense civic duty to ensure these instruments do not irreparably harm our country.”

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But Republicans continued to level accusations that the companies use Section 230 protections to shield censorship of Trump and other conservatives.

“The question for us as a country is, at what point do the decisions by these organizations cross a line?” asked Chairman Lindsey Graham, R-S.C. “At what point do they have to assume the responsibility that Section 230 shields them from?”

Graham and Blumenthal are leading a bipartisan Section 230 overhaul bill, which has more than a dozen other Senate co-sponsors, but representatives for the technology industry say the divide between Democrats who favor more content moderation and Republicans who favor less remains the greatest obstacle to passage.

“Both sides continue to blame Section 230 for contradictory problems,” said Carl Szabo, vice president and general counsel of NetChoice, an industry group that represents Twitter, Facebook and other technology companies, in a statement.

“Section 230 gives websites the tools and space they need to best serve Americans and protect against election interference,” said Szabo. “Without Section 230, political misinformation and harmful content could run rampant online, alienating users and businesses that rely on an internet that balances free expression with online safety.”

No heavy-handed changes

The executives spent much of the hearing defending their policies and decisions in the wake of Election Day. Zuckerberg asserted that Facebook undertook “the largest election integrity effort by any company in recent times,” and Dorsey said Twitter labeled roughly 300,000 tweets between Oct. 27 and Nov. 11 to limit election-related disinformation.

They also hinted at their visions for an updated Section 230. Both executives said their platforms should be more transparent about how content moderation policies are shaped and executed. But they were steadfast in opposing a repeal of the law or heavy-handed changes that would allow the government to dictate content moderation.

“Completely eliminating Section 230 or prescribing reactionary government speech mandates will neither address concerns nor align with the First Amendment,” Dorsey said. “Indeed, such actions could have the opposite effect, likely resulting in increased removal of speech, the proliferation of frivolous lawsuits, and severe limitations on our collective ability to address harmful content and protect people online.”

Both Trump and President-elect Joe Biden have expressed support for a full repeal of the law, a more extreme position than their colleagues in either party. But more narrow proposals are also viewed as too severe.

Setting out best practices

The Graham-Blumenthal proposal, which also has the backing of California Sen. Dianne Feinstein, the Judiciary Committee’s top Democrat, would establish a government body that would set practices for limiting child abuse material on their sites and revoke Section 230 immunity for companies that do not maintain those practices.

The bill has spurred opposition from the technology industry and civil liberties groups that say it would do little to protect children online while enabling a government body to act as online speech police.

“All it will do is … open the floodgates for internet censorship at a massive scale,” said Evan Greer, deputy director of the digital rights group Fight for the Future.

A bipartisan proposal by Senate Majority Whip John Thune, R-S.D., and Sen. Brian Schatz, D-Hawaii, appears more likely to win the support of Silicon Valley because it allows companies to retain their Section 230 immunity as long as they explain their content moderation decisions.

Some lawmakers doubted whether any bill changing Section 230 stands a chance of becoming law given the hyper-partisan nature of the debate. Sen. Ben Sasse, R-Neb., said he was surprised Republicans would back any proposal giving the government authority over online speech when a Democrat will occupy the White House in January.

“It’s odd that so many in my party are zealous to do this right now when you would have an incoming administration of the other party that would write the rules and regulations about it,” Sasse said. “I think [we] should take pause at the idea that so many on the other side are excited about having the next administration get to write these rules.”