The Republican administration, led by the current occupant of the White House has been trying for years to remove the protections that social media companies like Twitter and Facebook have. They seem to have a couple of hot buttons. One is end to end encryption which makes it hard for them to snoop on your communications and the other is the claim that social media is unfair to them, even though that same occupant of the White House is one of the biggest users of one social media brand.
One of the current bills in the Senate is the EARN-IT act. The idea is that if social media does not place a back door in their encryption, they would not “earn” protections under section 230 of the Communications Decency Act or CDA. CDA section 230 is the fundamental law that allows organizations like Twitter to exist. Without those protections, the company could be sued for content posted by its users. Likely if these protections are revoked these platforms would begin a massive censorship of content to try and avoid being sued for something that someone out there didn’t like.
That bill is currently on hold and likely would not make it through the House anyway.
While is seems that subjects like Covid, health care and others would be more important, the Senate continues to spend its time on these bills.
The most recent one was authored by Senator Graham, who has authored other similar bills. This one is going after the unfair claim. The bill, called the Online Freedom and Viewpoint Diversity Act and which has been merged into the Online Content Policy Modernization Act, is being rushed through the Senate by Graham – or at least he is trying to do that – so, I guess, he can point to a bill that will never become law and say see how wonderful we are.
So what does the bill do?
It tries to stop content providers from removing objectionable content by replacing “otherwise objectionable” with “promoting self harm, terrorism or unlawful”. This would stop companies from removing bizarre content unless it promotes self harm, etc. If passed, this would turn social media platforms into a platform where every conspiracy theorist or person with an axe to grind could post his or her content and the platform could not take it down unless it meets these narrow restrictions.
It also requires that content removal decisions be done in “good faith” – whatever that means. I am sure that lawyers will love that one. It also requires that those take downs are determined by an “objectively reasonable” justification. Again, there is no definition of that, so the result will be a massive number of lawsuits.
It also adds new legal exposure if a service “editorializes” or “affirmatively and substantively modifies” user’s content. Again, these terms are not defined, so the lawyers will love this one too.
This particular bill would do the opposite of some of the other bills and rather then encouraging service providers to filter content, it would basically require them to leave all garbage on the platform and make you wade through it to get to the stuff you want.
One way that the providers can counter this is by creating stronger terms of service. To make a point, if the service said that all content posted by men violated the terms of service and would be removed, that would get around the changes to the law. That particular example, is, of course, illegal, but you get the idea.
So maybe that 20 page terms of service that no one reads becomes a 40 page terms of service and explicitly outlaws a whole bunch of stuff.
The effect would be that nothing changes but that there would be a lot more business for lawyers. Since the Senate is made up of almost all lawyers, you can see why that would be of interest to Senators.
Wouldn’t it be better if they spent this limited time on fixing healthcare or helping those millions of people who are out of work? I guess not.
Credit: Professor Eric Goldman