Congress is weighing changes to Section 230, again. Here are what bills stand a chance.

November 9, 2021
In The News

For years, lawmakers in Washington have threatened to overhaul Section 230, the law that shields websites from lawsuits over user content, with almost nothing to show for it.    

A House hearing Wednesday may reveal whether any of the proposals on the table have enough traction to become law — or whether Congress needs to go back to the drawing board.

The session, hosted by the House Energy and Commerce Committee’s communications and technology panel, is expected to focus on a raft of bills introduced by members of the committee, including ones targeting algorithmic amplification, civil rights abuses and digital ads.

Here’s our breakdown of the bills under consideration and what their chances are of actually going anywhere:

Platforms’ recommendation algorithms are increasingly under fire

The push to open tech platforms up to liability for amplifying certain types of harmful content has gained the most momentum of any Section 230 effort this year, including by drawing a public endorsement from Facebook whistleblower Frances Haugen.

Most significantly, top Democrats on the key Energy and Commerce Committee, which holds primary jurisdiction over Section 230, are leading a bill to open platforms up to lawsuits for making personalized recommendations to users that lead to their harm. The legislation is similar to another proposal, led by Reps. Anna Eshoo (D-Calif.) and Tom Malinowski (D-N.J.), which zeros in on recommended content tied to civil rights abuses or international terrorism.

While neither of the bills currently has backing from Republicans, the concepts behind them have bipartisan support. A discussion draft bill unveiled in July by two top House Republicans would open large platforms up to liability when they use algorithms to “amplify, promote or suggest” content to users, without their knowledge or consent. Another bill from Sen. Marco Rubio (R-Fla.) would also hold companies accountable for algorithmically amplifying content.

For lawmakers looking to advance their Section 230 bills, gaining bipartisan, bicameral support will be crucial, particularly given the higher threshold for passing bills in the Senate. But both are tall tasks.

For the bills targeting how algorithms amplify content, a major hurdle will be whether Republicans and Democrats can agree on whether that carve-out should apply to all content or a smaller subset, such as posts that lead to harm. And they’ll need to find champions to lead the charge in the Senate, where some of the bills don’t yet have counterparts.

More content-specific carve-outs could be on the way

While there’s a growing focus on how content is amplified, plenty of lawmakers are still pushing to open platforms up to more liability for hosting certain types of noxious or harmful content. That playbook mirrors that of FOSTA-SESTA, the law passed in 2018 that gave state officials and victims more power to sue websites for hosting sex trafficking on their platforms.

Democrats have increasingly zeroed in particularly on how digital platforms can enable civil rights abuses, including through targeted online advertising. That’s the focus of one bill led by Rep. Yvette Clarke (D-N.Y.), the Civil Rights Modernization Act, H.R. 3184, that’s likely to get consideration at this week’s House hearing.

Sens. Mark Warner (D-Va.), Mazie Hirono (D-Hawaii) and Amy Klobuchar (D-Minn.) introduced a separate bill earlier this year, the SAFE TECH Act, that in part seeks to open companies up to greater liability over civil rights claims. It has gained a companion measure in the House. But those lawmakers face a major obstacle in trying to win over Republicans, who have balked at other Democratic civil rights initiatives.

Instead, there appears to be broader support for carve-outs tied to content that’s universally decried, such as terrorism, illegal drugs, child exploitation and cyberbullying.

Bills targeting those types of content have been introduced by Republicans and Democrats alike, including the Democratic-led SAFE TECH Act, the bipartisan EARN IT Act and the bipartisan See Something, Say Something Online Act. The EARN IT Act, for one, sailed unanimously out of committee last year in the Senate and has since picked up a House counterpart, making it one of the top contenders to become law.

House Energy and Commerce Republicans also made illegal drug sales, cyberbullying, terrorism and child exploitation a focus in a series of discussion draft bills to revamp Section 230 that they unveiled in July.

Misinformation, bias and political speech bills are essentially DOA

Don’t expect bills that explicitly target online misinformation or allegations of censorship to get anywhere near the president’s desk anytime soon.