Congress considers blowing up internet law

Internet platforms’ liability shield Section 230 faced another round of attack at a Senate Commerce Committee hearing on Wednesday, this time with two distinct undercurrents complicating the conversation. One was an unprecedented wave of ongoing legal challenges to the law’s scope, and the second was a heightened bipartisan concern over government censorship.

“Section 230 is not one of the Ten Commandments,” Sen. Brian Schatz (D-HI) said in his opening remarks. “This idea that we can’t touch it, otherwise internet freedom incinerates, is preposterous.” Sens. Dick Durbin (D-IL) and Lindsey Graham (R-SC) have introduced a bill to sunset Section 230 entirely just as the law turned 30 years old, while other proposals seek to narrow its scope.

Section 230 protects social media platforms, newspaper comment sections, and other online forums from being held liable for content their users post, and protects platforms if they choose to limit or remove that content. It’s foundational to many online services, but critics believe its protections are too sprawling and outdated for massively successful Big Tech companies. Debate in this hearing mostly centered on two issues: harm to children and alleged over-policing of conservative content.

The backdrop was a recent trial in Los Angeles where jurors are now deliberating whether Instagram and YouTube were designed in ways that harmed a young plaintiff, and whether certain design decisions fall outside of Section 230’s protections. Matthew Bergman, whose Social Media Victims Law Center has led the charge in this product liability model of social media litigation, testified before the committee with parents sitting behind him holding photos of their children who died after allegedly facing online harms.

Bergman said he does not support a full repeal of Section 230, but that while product liability litigation is playing out in court, Congress can help their cause by clarifying the law isn’t intended to protect platforms’ design decisions. Some lawmakers asked whether new laws were needed for families like Bergman’s clients to prevail, or if cases like his showed the courts could work it out under existing law. Bergman said that if they wait for the courts to decide, “more kids are going to die.”

“It’s no longer theoretical that the door swings both ways in Washington”