Democrats and Republicans agree that Section 230 is flawed

Bashing Big Tech's online liability shield has bipartisan support in Washington DC. Republicans and Democrats, and their flag bearers President Donald Trump and former Vice President Joe Biden, have called for a key section of the 1996 Communications Decency Act to be dismantled. But the two sides differ greatly on the why and how. 

On Wednesday, Senate Republicans and the Justice Department unveiled proposals that would scale back Section 230, which shields internet companies from lawsuits for content posted on their sites by third parties. It also allows these companies to make "good faith" efforts to moderate content.

Republicans have long accused Facebook, Twitter and other social media platforms of abusing the legal protection to censor conservative views. Trump has championed that position, signing an executive order last month that requests a government review of Section 230. The president's move came after Twitter fact-checked and labeled the content of a pair of his tweets as potentially misleading. 

Section 230 has drawn sharp criticism from the left, as well. Democrats have attacked the statute for allowing Silicon Valley to deflect responsibility for disinformation and deceptive content that flourishes on their sites. 

Biden, the Democratic party's presumptive presidential nominee, has called for the Section 230 protections to be revoked entirely. Other senior members of the party, including Speaker of the House Nancy Pelosi (California) and Sen. Richard Blumenthal (Connecticut), have taken more nuanced approaches, suggesting revisions or updates to the law. 

Still, Democrats aren't fans of Trump's executive order, which specifically asks for the Federal Communications Commission to write regulations that curb protections for companies that "censor" speech online. Democrats also don't like the Department of Justice's recommendations for reining in Section 230 authority or the Republican bill that would strip protections for companies weeding out or flagging false content on their sites. 

At an event hosted by George Washington University on Tuesday, Pelosi said the Trump administration is encouraging online platforms to "continue to profit" from disinformation rather than hold them accountable for it.

The tech industry has warned that revisions to Section 230, especially those proposed by the Trump administration, could restrict free speech online. The industry argues that without the legal protections, tech platforms would take a stricter approach to moderating content to reduce legal liability.

Here's a look at the Republicans' most recent proposals, what Democrats are saying about it and how it differs from their efforts.

Ending Support for Internet Censorship Act

On Wednesday, Sen. Josh Hawley, a Republican from Missouri, introduced a bill to amend the Communications Decency Act that would require companies to prove a "duty of good faith" in their content moderation to receive Section 230 protections. Republican Sens. Marco Rubio (Florida),  Mike Braun (Indiana) and Tom Cotton (Arkansas) co-sponsored the legislation.

According to the legislation, companies that violate that duty could face damages of $5,000 for each affected user. The legislation only applies to companies with more than 30 million users in the US or 300 million globally, and with over $1.5 billion in global revenue.

Last year, Hawley introduced a different bill targeting Section 230 reform. Called the Ending Support for Internet Censorship Act, it would have allowed companies to win back their liability protections if they submitted their algorithms and content moderation policies to audits that would determine if they are "politically neutral."

DOJ proposes rolling back liability protections 

Also, on Wednesday, the Justice Department put forward a proposal listing several actions it would like Congress to consider to dramatically reduce Section 230's scope.

It's important to note that this is a proposal and would require action from Congress to become law. 

Specifically, the DOJ seeks to deny Section 230 immunity for content dealing with child exploitation, terrorism and cyber-stalking. It would also strip protections from platforms that facilitate or solicit unlawful content or activity by third parties.

The DOJ is also asking Congress to change the language in the statute around content moderation to more closely link the legal "good faith" standard to the company's terms of service. It also wants to require companies to offer a "reasonable explanation" for moderating content. 

Trump's executive order

Both Hawley's bill and the DOJ proposal come after Trump's executive order. Trump said in a tweet days before signing the executive order that, "Republicans feel Social Media Platforms totally silence conservatives voices." Then he threatened to shut down the companies.  

"We will strongly regulate, or close them down, before we can ever allow this to happen," his tweet continued.  "We saw what they attempted to do, and failed, in 2016. We can't let a more sophisticated version of that.... happen again."

The May 29 executive order directs the Commerce Department to ask the Federal Communications Commission to propose regulation that clarifies when a company isn't acting in good faith. That includes when a company decides to restrict access to content but its actions are inconsistent with its terms of service or taken without adequate notice or a "meaningful opportunity to be heard."

The action came after Twitter labeled some of Trump's tweets about mail-in voter fraud for including "potentially misleading information about voting processes."  

Democrats react

Some Democrats also have problems with large social media companies using Section 230 as a shield. But their concern focuses more on companies using the legal immunity to skirt their duty to remove false and misleading content on their platforms. 

Biden told The New York Times editorial board earlier this year, he thinks the whole provision should be eliminated. 

But aside from Biden, most Democrats in Congress interested in Section 230 reform, believe amendments to the statute should be limited in scope to ensure free speech is protected. They've criticized Trump and the DOJ for their efforts.

Rep. Frank Pallone of New Jersey, who chairs the House Energy and Commerce Committee, tweeted his objections to the DOJ's proposal earlier this week.

"Section 230 badly needs reform, but this is just a continuation of @realdonaldtrump's political retribution designed to frighten social media platforms into submission," he said. "Sad, but unsurprising, that @TheJusticeDept is doing his dirty work."

The bipartisan approach 

Democrats Sens. Blumenthal and Dianne Feinstein (California) joined Republican Sen. Lindsey Graham (South Carolina) and Hawley in March to introduce the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, known as EARN IT. 

This legislation would establish a new government commission composed of administration officials and outside experts, who would set "best practices" for removing child sexual exploitation and abuse material online. The bill would require companies to earn Section 230 protections by certifying that they complied with a set of best practices for detecting and reporting child exploitation materials to law enforcement. 

The proposed law has been widely criticized by security experts, civil liberties advocates and opposing lawmakers, who say it's a veiled attempt to erode end-to-end encryption. Few question the importance of ensuring child safety, but technology experts warn that the bill is really just the government's latest attempt to uproot both free speech and security protections online. 

Schakowsky and Cicilline

Other Democrats in Congress have also said they want to limit Section 230. Rep. Jan Schakowsky (Illinois), who chairs a subcommittee of the House Energy and Commerce Committee, said earlier this year she planned to introduce legislation to limit Section 230 immunity. Her subcommittee is holding a hearing on June 24 looking at allegations that "social media platforms have failed to take sufficient steps to address disinformation."

Schakowsky has said she believes the legal shield "should not provide companies with the right to sell unsafe items to consumers anonymously" nor "give them the right to sell advertisements marketing too-good-to-be-true schemes." 

Rep. David Cicilline (Rhode Island), chair of a House Judiciary subcommittee investigating antitrust behaviors of big tech companies, has also criticized Sec 230 protections. 

In February, Cicilline told attendees at the National Association of Broadcasters annual conference that he wanted to draft legislation that stripped tech liability protections from online platforms that knowingly allowed "demonstrably false" political ads. 

But a bill Cicilline introduced in May doesn't address Section 230, focusing instead on ads that micro target constituents. The Protecting Democracy from Disinformation Act would limit political advertisers to targeting users based only on age, gender and location, and would restrict micro targeting, which allows advertisers to direct messages at subsets of users based on data ranging from their hobbies to their ethnic background.

With Democrats and Republicans so divided on how and what reforms to take and with Trump's executive order already being challenged in court, it's unlikely that any changes at all to the law will occur this year.