During a combative Senate Judiciary Committee hearing Wednesday, Senate lawmakers from both sides of the political aisle doubled down on calls to gut major provisions of the internet’s most important legal liability shield. The senators slammed tech companies for allegedly putting profits over user safety and criticized members of the Supreme Court who appeared hesitant to upend Section 230 protections during oral arguments last month. Supporters of Section 230 say its provisions are fundamental to the modern internet. Senators disagreed.
“I don’t think you can argue that Section 230 as it is currently written is essential to continuing the internet,” Connecticut Sen. and committee chair Richard Blumenthal said.
Missouri Sen. Josh Hawley, an adamant election denier and apparent insurrectionist fanboy, claimed Section 230 had been “systematically rewritten” by courts over the past twenty years—often at the behest of Big Tech companies—to a point where it’s now “completely unrecognizable” from what Congress intended. Without citing examples, he alleged that The Supreme Court was partly to blame for that perceived reinterpretation.
“I hope the Supreme Court will do something about it because frankly, they share some of the blame for this,” he said.
Blumenthal, the committee chair, made similar swipes at the court and said it “became clear” during the court’s recent oral arguments that they weren’t the foremost experts on the internet. Justice Elena Kagan basically admitted that point in her remarks during oral arguments for the Gonzalez v. Google case concerning Section 230.
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“We really don’t know about these things,” she said.
In contrast to the justices who seemed uniformly apprehensive about muddling with what some have referred to as, “the backbone of the internet,” members of the Senate on both sides of the aisle appeared resolute in their desire to gut key parts of Section 230. Over the course of two hours, the senators and a panel of expert lawyers railed against the protections which they claimed were outdated for the modern internet and unjustly prevent harmed users from seeking restitution. Big Tech, in their view, had repurposed a liability shield into a sword for promoting harmful, but profitable content
“The fact of the matter is Big Tech is making big bucks by driving content to people knowing of the harms that result,” Blumenthal said. “More eyeballs for more periods of time means more money.”
What is Section 230 and why do lawmakers want to kill it?
Some background is in order here. Section 230 of the Communications Decency Act refers to 26 words of tech policy written in 1996 intended to protect then-nascent internet platforms from a sea of lawsuits that could potentially leave them unable to grow. In a nutshell, Section 230 both prevents online platforms from facing lawsuits if one of its users posts something illegal and shields them from legal liability for moderating their own content. Meta and Google’s ability to boost content and curate stories as well as boot shit-hurlers off their platform without fear of litigation are directly tied to 230.
Critics of 230, which includes just about every senator speaking during the hearing on Wednesday, claim those protections, as they are currently interpreted, no longer make sense in an era of recommendation algorithms and AI. Senators insisted that Big Tech companies have hidden behind the provisions to avoid facing legal consequences for addicting their users to harmful content, disseminating child sexual abuse material or revenge porn, and allegedly amplifying terrorist content. Section 230 was crafted to provide smaller companies with room to breathe, but Blumenthal said the major platform had outlived that privilege.
“Nobody is forever young,” Blumenthal, age 77 said. “And these companies are not small.”
Is social media a ‘defective product?’
Over the course of the hearing, lawmakers and experts tried to compare recommendation algorithms that serve up potentially harmful content to “defective products.” During his testimony, University of California computer science professor Hany Farid said the core issue in terms of holding platforms accountable wasn’t about the over- or under-moderation of speech but rather around “faulty” algorithms and design decisions that addict users, “in order to increase user engagement.” They said lawmakers should ensure those algorithms are “safe” just as they ensure batteries in phones don’t randomly explode. Well, most of the time anyway.
Farid went on to draw stark distinctions between search algorithms, which he said were essential to platforms like Google, and supposedly less necessary recommendation algorithms which he described as not “core” functions.
“Recommendation algorithms are designed for one thing: to make platforms sticky,” Farid said.
Mary Anne Franks, a professor at the University of Miami School of Law acknowledged some platforms were making good-faith efforts to be responsible stewards of the internet but claimed the current standard left users at the behest of their good graces. Farid, who helped create a program meant to scan for CSAM, said Big Tech platforms weren’t responsive to critics pleading for them to take more action against CSAM content because it allegedly could threaten their bottom lines.
“They came kicking and screaming to do the absolute minimum,” he said. “They don’t want to do it because it is not profitable.”
Hawley, meanwhile, took shots at the current state of tech regulators who he accused of being financially captured.
“The Big Tech companies tend to own the regulators at the end of the day,” he said. “It’s a revolving door.”
Outright 230 repeals would be a ‘calamity’
The sole voice arguing for restraint around modifying 230 came from Andrew Sullivan, the President and CEO of the nonprofit Internet Society. During this testimony, Sullivan said an outright 230 appeal “would be a calamity,” and transform the internet into a far less-free place for communication. Though the senators uniformly focused their criticism on the dominant tech platforms, Sullivan said the reforms they were advocating for would counterintuitively actually only serve to further entrench their power.
“If there are changes to 230, it is almost certain [that] the largest players will survive it because they have amassed so much wealth,” Sullivan said. “Small players will have very difficult times entering markets.”
Gutting Section 230, Sullivan added, may not necessarily destroy the internet as some have warned, but, it would degrade it into something unrecognizable.
“Well still have something we call the internet but it won’t be the thing that allows people to reach out and connect with each other,” Sullivan said.
