US senators propose yet another problematic Section 230 shakeup: As long as someone says it on the web, you can't hide it away

Three Republicans take stab at 'objective reasonableness'

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Analysis With studied ignorance, yet another piece of proposed legislation targeting social media, and invoking Section 230 of the Communications Decency Act, has emerged this week.

This time, three Republican senators – Roger Wicker (R-MS), Lindsey Graham (R-SC) and Marsha Blackburn (R-TN) – are behind the effort “to hold Big Tech accountable” by proposing a change to US law that right now gives online platforms legal protections for content posted by their users.

"For too long, social media platforms have hidden behind Section 230 protections to censor content that deviates from their beliefs," said Wicker in a statement. "These practices should not receive special protections in our society where freedom of speech is at the core of our nation's values.”

The draft Online Freedom and Viewpoint Diversity Act [PDF] continues to promote the fiction that social media platforms are censoring conservative viewpoints, that they are hiding behind the 26 words in the 1996 law that makes up Section 230, and that the law needs to be changed to introduce a concept of “neutrality” to ensure such censorship doesn’t continue in future.

In this case, the three lawmakers wish to insert text into Section 230 that would remove its blanket legal protections for any platform that limits access to “material provided by another information content provider.” Or, in other words, strongly discourage platforms from hiding away material that isn’t obviously illegal.

But the wording as proposed has a very obvious flaw: it would legalize a race to the bottom, where so long as some platform somewhere – 4chan, for example – hosted the content, other platforms cannot restrict or remove access to that material without losing their legal shield.

Coincidentally, yesterday, President Trump – who has had his blatantly false tweets hidden or flagged up at times by Twitter – re-emphasized his entirely incorrect understanding of the current law by tweeting: “Why does Twitter leave phony pictures like this up, but take down Republican/Conservative pictures and statements that are true? Mitch must fight back and repeal Section 230, immediately. Stop biased Big Tech before they stop you!” in response to a photoshopped picture of Senate leader Mitch McConnell (R-KY) dressed as a Russian and standing in front of the Kremlin.

Objectively objectionable

That’s not the only problem with the proposed law: it would also require online platforms to form “an objectively reasonable belief” that something should be removed before doing so: language that ignores the reality of content moderation and raises the question, who gets to decide what is ‘objectively reasonable’?

The act would also replace the purposefully vague phrase “otherwise objectionable” within the law – which gives platforms some leeway in how they handle content – and replace it with a more precise phrase of "promoting self-harm, promoting terrorism, or unlawful."

That may seem like a reasonable proposition, except for the fact that by removing the terms “otherwise objectionable”, the law would implicitly limit itself to only those categories listed. Currently it is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

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But what about the problem du jour: misinformation? Or conspiracy theories that have exploded on the internet to the extent that ludicrous assertions, like famous actors and politicians are abducting children, have grown so prevalent that people have felt the need to counteract them? Or what about good old-fashioned hate speech, which is famously difficult to prove as "unlawful"?

There is a good reason that some laws are not too precisely drafted, especially when it comes to things like technology that are liable to change constantly and swiftly over time.

The proposed law also has two parts that appear written entirely to target Twitter’s approach to minimizing misinformation, in which it slaps a warning on a tweet with a link to information that questions the tweet’s accuracy. Something that has, of course, particularly upset President Trump.

The draft act includes text that makes a web platform responsible for user-generated content in “any instance in which a person or entity editorializes or affirmatively and substantively modifies the content of another person or entity,” or anyone that makes “a change to the format, layout, or basic appearance of the content of another person or entity."

Trash

This is, of course, terrible law. But we are entering election season and politicians have again abandoned any pretence at producing workable laws in order to grandstand and pump out press releases attacking enemies and supporting allies.

The problem is that this legislation, like all section 230 treatises before it, distorts people’s understanding of the law and turns a very important topic – the provision of information online – into an unthinking and inaccurate partisan battle.

There are real problems with misinformation online and lawmakers should be focused on how to produce law that makes the situation clearer and better, not worse and more confused. ®

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