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.
“How can we continue to give this get-out-of-jail card to these platforms that constantly do nothing to address the foreseeable, obvious and repeated misuse of their products and services to cause harm? That was kind of our operating premise,” Warner said.
Ultimately, it would be up to a judge to decide the merits of these claims; the bill mostly opens the door for Web users to argue their cases without running as much risk of having them dismissed early. Facebook, Google, Twitter and other social media sites stand to lose these highly coveted federal protections under Warner’s bill only in the case of abusive paid content, such as online advertisements, that seek to defraud or scam customers.
“You shouldn’t get immunity from this advertising content that’s providing you revenue,” said Warner, who is introducing the measure along with Democratic Sens. Amy Klobuchar (Minn.) and Mazie Hirono (Hawaii).
The proposal reflects the political rift between Washington and Silicon Valley that has only widened in the weeks since a mob stormed the U.S. Capitol in a violent, failed insurrection. Rioters at the time acted on the words of now-former president Donald Trump and his false claims of election fraud that had proliferated across social media sites — once again raising questions about the extent to which Facebook, Google and Twitter, and a vast web of lesser-known forums, are properly policing their sites and services.
The incident has injected fresh urgency into familiar calls to rethink Section 230, which intensified last year amid a flood of proposals from Democrats and Republicans seeking to overhaul or repeal the law. In response, the country’s largest technology companies have sought to tread carefully: Facebook chief executive Mark Zuckerberg and his fellow executives have signaled an openness to changing Section 230, but the companies have not endorsed the most sweeping proposals that would hold them accountable for their missteps.
“I’m going to be very interested to see how the industry reacts to this,” Warner said in an interview this week previewing his bill. “It’s going to be where the rubber hits the road. Are they going to pay lip service to reform?”
In seeking to sketch out his proposal, Warner said its passage could have wide-ranging effects: It could allow the survivors in the Rohingya genocide in Myanmar to sue Facebook, for example, because the social network had been slow to take down content that stoked ethnic tensions.
“If there are going to be victims of platform-enabled human rights violations,” Warner said, “that should not be thrown out” of court.
Those who face physical harassment also would have clearer legal avenues at their disposal, he said. Warner pointed to a 2017 court case involving the dating app Grindr. A New York man sued the company at the time, claiming it had failed to disable fake profiles created by his former partner for the purpose of causing physical harassment. A judge later ruled that Grindr could not be held responsible, citing Section 230 — a mistake, in Warner’s view, that his bill aspires to fix.
“Clearly, that individual was having his personal reputation, his life, thrown into complete chaos,” said Warner, noting his bill would address the issue. “He should be able to get injunctive relief. That should not be prohibited. Grindr should not be able to hide behind Section 230.”
Even before the bill was formally introduced, Warner’s effort had drawn the support of civil rights organizations including the Anti-Defamation League, the NAACP Legal Defense and Educational Fund, and Color of Change. Many organizations said Warner’s approach would offer new routes to justice, particularly for people of color, who face significant harassment and discrimination stemming from social media sites.
“This bill would make irresponsible big tech companies accountable for the digital pollution they knowingly and willfully produce, while continuing to protect free speech online,” David Brody, a senior fellow for privacy and technology at the Lawyers’ Committee for Civil Rights Under Law, said in a statement.
“Black Americans and other communities of color are frequent targets of online hate, threats and discrimination, and many of these online behaviors would not be tolerated if they occurred in a brick-and-mortar business,” he continued. “It is time that Big Tech stop treating our communities of color like second-class citizens and give them the protection they deserve.”
But some of the foremost advocates of Section 230 said Warner’s proposal actually threatened to backfire legally. Sen. Ron Wyden (D-Ore.), one of the original law’s architects, said in a statement that the “admirable goals” motivating the bill did not change the fact it threatened to “devastate every part of the open internet, and cause massive collateral damage to online speech.”
“This bill would have the same effect as a full repeal of 230, but cause vastly more uncertainty and confusion, thanks to the tangle of new exceptions,” Wyden said.
An outspoken critic of Big Tech, Warner has put forward a series of proposals to rein in the industry in the years since he and other lawmakers on the Senate Intelligence Committee helped expose the extent to which Russian agents spread disinformation on social media sites during the 2016 election. The senator pledged this week that the panel, which he now chairs, plans to continue its scrutiny, given Democrats’ and Republicans’ “real interest in coming back and revisiting disinformation, misinformation, its ties to domestic extremism” and the threats posed by Russia, China and other adversaries.