Industry representatives are accusing Republicans and Democrats of attempting to intimidate social media companies ahead of next year’s midterm elections.
That comes as a brief period of bipartisan momentum behind legislative efforts to regulate companies like Facebook, YouTube and Twitter appears to have passed, with Republicans and Democrats reverting to partisan differences and bickering.
After the disclosure this fall of tens of thousands of internal documents by Facebook whistleblower Frances Haugen, including those that showed the company knew its products were harming the mental and physical health of teenage users, lawmakers from both parties said the time had come for federal regulation.
Many of the proposals that lawmakers considered took aim at Section 230, a provision of a 1996 law that protects social media companies from being sued for content posted on their platforms by third parties. The companies and the algorithms that power them had become too powerful to benefit from a liability shield like Section 230, lawmakers on both sides of the aisle argued.
But even trying to protect children online may not be enough for Democrats and Republicans to build a bipartisan bridge to amending the law.
At a House Energy and Commerce subcommittee hearing last week, Republicans balked at Democratic bills that would carve out exceptions to Section 230’s protections for civil rights violations or cases in which algorithms suggest content that causes emotional or physical harm.
“I’m deeply troubled by the path before us,” said Washington Rep. Cathy McMorris Rodgers, the top Republican on the full committee. “It’s calling for more censorship.”
McMorris Rodgers said the bill in question would force social media companies into an impossible choice between risking a lawsuit or avoiding litigation by removing content that might violate the law.
“How does the bill define severe emotional injury? It doesn’t,” she said. “Clearly, companies will have to decide between leaving up content that may offend someone or fight it in court or censor content that reaches a user. Which do you think that they will choose?”
McMorris Rodgers was one of several Republicans who accused social media companies of allowing anti-conservative bias to color their content moderation decisions. The evidence that such bias exists is largely anecdotal, but it has still dictated the GOP approach to the Section 230 debate in recent years.
Democratic Rep. Mike Doyle of Pennsylvania, who chairs the Energy and Commerce Communications and Technology Subcommittee, noted similarities between the Democratic bill and draft legislation released by McMorris Rodgers and Rep. Jim Jordan, R-Ohio, in July.
“There’s a bipartisan desire to reform […] Section 230, and the American public wants to see us get things done,” Doyle said. “These companies would like nothing more than for Congress to fight amongst itself while nothing happens.”
But from the technology industry’s perspective, Democrats and Republicans can’t agree on how to overhaul Section 230 because they have diametrically opposed agendas.
“What you’re seeing is a fundamental disagreement on what should and should not be allowed on social media,” said Carl Szabo, vice president of NetChoice, a coalition with members including Facebook, Google and TikTok.
Szabo continued: “Democrats are calling for more content moderation to remove the type of content they don’t like, and Republicans are calling for less content moderation and less discretion. When it comes to policy solutions, they’re running in opposite directions.”
The disconnect over a path forward on Section 230 mirrors a similar situation prior to the 2020 presidential election, when Democrats pressed Facebook on its handling of disinformation related to voting procedures and results and Republicans hammered Twitter for censoring a New York Post article about President Joe Biden’s son Hunter.
The threats by both parties to Section 230 were attempts to “work the referees,” Szabo said, a metaphor he says is once again operable with next year’s midterm elections on the horizon.
“Both parties are trying to amend Section 230 to make it harder for the other side. It’s essentially a political battle,” he said. “If Democrats can control the algorithms they can make it harder for Republicans, and vice versa.”