Democrats’ SAFE TECH Act Could ‘Destroy Most of the Open Web’

A newly-proposed change to Section 230 would introduce legal liability for online platforms and forums for third-party speech. It is being suggested as a way of combating alleged racial and social online injustices. According to critics, however, the bill is ill-conceived and has the potential to transform large parts of the internet for the worse and empower powerful players against smaller competitors.

Section 230 has become a hot topic in the US in recent years. Under this law, which “defined how the Internet works”, platforms adopting a hands-off approach to content moderation cannot be held reliable for harmful or illegal third-party content hosted by them. The protections under the law do not extend to sites which filter users’ submissions and curate content featured on the page. As the Washington Post recounts, the Section was created in the wake of two lawsuits in the 1990s - against Prodigy Services and against CompuServe - coming to similar conclusions.

The provision has come under criticism from both Democratic and Republican legislators, albeit for different reasons. The goal of Republicans, including former president Trump, was to address selective political censorship which has been repeatedly alleged against Silicon Valley online platforms. For example, in December last year, Trump attempted to use his veto power over a proposed defence bill as leverage against the Congress to outright repeal Section 230. 

On the other hand, critics of the law among the Democrats have been blaming social media platforms for being reluctant or slow to remove content deemed as harmful, from hostile communication perceived as harassment to the spread of unreliable information. 

In an October 2020 article, Washington Post summarized the pro-Section 230 and anti-Section 230 views, which could be applied to any party-political group, thus:

“Critics [say] Section 230 gives tech companies too much power over what is and is not allowed on their sites. Supporters - including a wide range of Internet companies, free-speech advocates and open-Internet proponents - say that without the law, online communication would be stifled and social media as we know it would cease to exist.”

However, when a recent bill was announced by Sen. Warren to introduce dramatic changes to Section 230, the coverage by Washington Post was more than charitable to the proposal. Defending the bill, the newspaper aims to play down its impact in a puzzling way:

“The senator’s proposal aims to preserve the thrust of Section 230, which generally spares a wide array of website operators from being held liable for what their users say. Instead, it opens an easier legal pathway for Web users to seek court orders and file lawsuits if posts, photos and videos - and the tech industry’s refusal to police them - threaten them personally with abuse, discrimination, harassment, the loss of life or other irreparable harm.”

It is not clear how “open[ing] an easier legal pathway … to seek court orders and file lawsuits” does not constitute “being held liable” for the content hosted on one’s platform. If legal immunity for third-party content on a non-curated platform is removed, that, by definition, creates a legal liability for this content.

The ‘redline version’ of the bill itself provides a clear overview of the changes proposed (in bold):

Two significant changes are introduced in this part of the bill - the ‘payment’ provision and the change from immunity to an affirmative defence.

In his response to the bill, Copia Institute CEO Mike Masnick explains that the ‘payment’ provision could come to mean that “many many services” would not be able to benefit from even the weakened version of Section 230. This might extend as far as “all web hosting” or “paid options (say, to remove ads)” on social media. “Incredibly, under this bill, the two cases that inspired Section 230 - the CompuServe case and the Prodigy case - would not be eligible for [Section] 230 protections, because both were paid services!”

The other change is also highly significant despite not seeming so at first glance, according to Masnick. Changing the procedural framework from immunity to an affirmative defence would, in practice, mean that defendants could no longer simply “file a relatively straightforward motion to dismiss”, citing Section 230, without spending much on legal expenses. Instead, under the proposal, the website facing a lawsuit would need to “prove by a preponderance of evidence” that the complaint is not accurate.

“Not only [is the website] going to have to pay a lot of expensive lawyers a lot more money to make a preponderance of the evidence claim, many courts find that such determinations are issues of fact, not law, meaning that they need to go to a jury. If a case goes to trial and has a jury, you're talking about it costing at least a million dollars for any company, and probably a lot more.

This wipes out the entire benefit of Section 230 by itself. Most companies, of course, will then try to avoid just having to face this by quickly taking down anything even remotely questionable or anything that people complain about. And they'll still get sued. This bill would absolutely destroy most of the open web.”

These predictions echo the aforementioned earlier claims by “free-speech advocates and open-internet proponents”. The change would possibly create a two-tiered web, where only a handful of large corporations with enough resources could operate strictly policed social media-style platforms, while the rest of the internet would be effectively prevented from creating spaces for open discussion and uncurated user-generated content.

Furthermore, aside from the two issues discussed, the other part of Section 230 which has been changed significantly in the new bill excludes requests for ‘injunctive relief’ from the protections under the weakened Section. Masnick explains:

“[T]his would allow a bevy of lawsuits from people who just want something taken offline (and aren’t asking for monetary damages), that they will claim creates “harm” to them, … While supporters of this bill might argue that filing such a lawsuit alone would be expensive, so this wouldn’t be abused, that ignores how frequently we’ve seen especially the rich and powerful try to use any legal means possible to remove content they dislike from the internet. This clause is like a free shot for the rich and powerful to silence criticism.”

An example of the impact the proposal could have on speech online, according to Masnick, is that revelations like the original #MeToo coming-outs would never be allowed to happen - with the likes of Harvey Weinstein being able to force Facebook to act on his behalf through endless lawsuits.

The recent bill, dubbed the SAFE TECH Act, was introduced by Sen. Mark Warner and is co-sponsored by Senators Mazie Hirono and Amy Klobuchar, who appear to have taken up the position of frontline challengers of Silicon Valley on the side of the Democrats. However, their proposal would likely only empower Silicon Valley at the expense of much of the rest of the internet. The proposal has been criticized as “a dumpster fire of cluelessness”. Moreover, with the change in administrations from Trump to Biden, such proposals can be expected to receive more lenient treatment by the corporate press, as already evidenced by Washington Post’s coverage. Although there is likely to be a split among the Democrats in the Congress on the support for this specific bill, it is yet to be seen how long the internet in its present form will prevail among the recently-intensified negative sentiments from both sides of the aisle.