Greater accountability would come by requiring a “defined complaint system” that handles reports and alerts users to moderation actions within two weeks while providing an appeals process. Companies would have 24 hours to remove any content deemed illegal, although smaller outlets would have more leeway for responding to requests and user complaints.

The bill would limit Section 230’s ability to to protect companies from actions by federal regulators and state attorneys general, and would have the Government Accountability Office examine the possibility of an FTC-run whistleblower program for online platforms.

If all goes well, this would hold sites to task when they’re abusing the law or are clearly aware of users’ illegal activity. A site that thrives on user uploads of pirated material would have a more difficult time avoiding legal action. This wouldn’t weaken encryption (as the EARN IT Act and other initiatives might), however, and it wouldn’t force sites to carry content.

There’s no certainty this bill and its expected House counterpart will survive Congress and become law. Schatz pointed out that this is not only a bipartisan bill, but is sponsored by both the chairman and ranking member of the Senate committee. It might gain traction where single-party bills have fallen short.

For example, the proposal would not give companies legal immunity in cases involving acts like terrorism, sexual abuse and cyberstalking. Another part of the proposal would also reportedly limit what protection tech companies have in civil cases involving the federal government.

The Wall Street Journal reports the proposal also suggests striking a clause that allows online platforms to delete content they “merely deem objectionable.” The paper explains the aim of this part of the proposal is to impose significant limits on how companies like Twitter and YouTube moderate their platforms. The Justice Department reportedly wants to push companies to adhere to their terms of service, as well as any public claims they make about how they police their websites. In cases where they do action, companies would have to provide “reasonable” explanations detailing their decisions.      

Currently, Section 230 gives internet companies broad immunities. The clause, for instance, protects YouTube from being held accountable for the actions of some of its biggest stars. In the last year, both Democrats and Republicans have called for lawmakers to reopen and reexamine the Communications Decency Act. Earlier this year, Joe Biden said he would immediately repeal Section 230 if he were elected president. But as we wrote earlier this year, rolling back the clause, without care and consideration, is likely to fundamentally change the nature of the internet.   

Whether or not the senators get what they want is another matter. Reuters noted that FCC Commissioner Mike O’Rielly saw “very complex issues” behind the order. He previously echoed beliefs that conservatives were being “stifled by liberal tech leaders,” but also said he was “extremely dedicated” to free speech rights. Chairman Pai said in 2018 that he didn’t see a role for the agency in regulating companies like Facebook or Twitter this way. Provided both officials hold to their positions, a review might fall short of the necessary support before it even starts.

As it stands, there are concerns that rethinking Section 230 would undermine the internet. Senator Ron Wyden, who co-authored Section 230, shared an editorial with CNN defending the spirit of the law. He argued that the section was designed to protect free speech as both a “sword and a shield.” It protected sites from liability for the actions of their users, but also gave them the power to delete “slime” like false claims and offensive material. He also contended that abolishing Section 230 would lead many sites to either over-moderate out of caution or not moderate at all, either silencing activists or leading to free-for-all toxic environments. Whether or not Wyden is right, his arguments as a co-creator of Section 230 may carry some weight in an FCC decision.

In a statement, CDT chief Alexandra Givens added that Trump’s move was a “direct attack” on free speech. “The government cannot and should not force online intermediaries into moderating speech according to the President’s whims,” she said.

Twitter unsurprisingly supports the lawsuit. It pointed Engadget to a statement calling the order a “reactionary and politicized approach to a landmark law” that could “threaten the future of online speech.” You can read the full statement below.

It won’t be surprising if more legal battles follow, but CDT’s is a prominent example. It could also carry some weight in the tech industry beyond Twitter’s approval, as CDT’s board includes executives from Microsoft and Mozilla.

Thank you, @CenDemTech More from us https://t.co/DplH24SioB pic.twitter.com/xAd8xGniep

— Twitter Public Policy (@Policy) June 2, 2020

In an earlier interview, Mark Zuckerberg said he didn’t believe it was the “right reflex” to combat censorship with more censorship. “In general, I think a government choosing to censor a platform because they’re worried about censorship doesn’t exactly strike me as the right reflex there,” he said. 

He and Facebook are referring to a section of the executive order that says Section 230 of the Communications Decency Act, which protects tech companies from being legally liable for what their users say, should be “clarified” and its protections rolled back if a company isn’t acting in “good faith.”

The good news for Facebook and Twitter is that experts agree the order is largely unenforceable and at odds with the First Amendment.

But Facebook still has valid reasons to be worried about the future of Section 230. Joe Biden has also stated that 230 should be repealed and, even if Trump’s executive order ends up being mostly toothless, it could still result in lengthy legal battles for social media companies. 

Twitter, who one executive once described as “the free speech wing of the free speech party,” and has been dealing with targeted harassment of one of its employees, has yet to weigh in on the executive order. A Twitter spokesperson declined to comment, though CEO Jack Dorsey previously defended the company’s choice to fact-check Trump’s tweets. 

“We’ll continue to point out incorrect or disputed information about elections globally,” Dorsey tweeted, pointing to the company’s civic integrity policy. “Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves.”

The draft does ask the commission to consider issues like privacy and security when establishing the practices. However, the 15-person commission would be led by the Attorney General, and current AG William Barr has been a vocal opponent of end-to-end encryption. As the draft law would let Barr modify the rules without a consensus, it wouldn’t take much for him to require a backdoor and thus weaken encryption for everyone by creating a hacker-friendly vulnerability.

Riana Pfefferkorn, an Associate Director at the Stanford Center for Internet and Society, also warned that the commission wouldn’t have much oversight. She also noted that the last modification of Section 230, for FOSTA-SESTA, is facing a constitutional challenge and appears to have done more to hurt sex workers than curb sex trafficking.

This is a draft bill and isn’t guaranteed to reach the Senate Judiciary Committee as-is, let alone make it to the floor for a vote or pass both sides of Congress. Senator Richard Blumenthal was supposed to co-sponsor the bill, but there hasn’t been any sign of this so far. It does illustrate some congressional attitudes toward liability for online content, though, and suggests that Section 230 might be vulnerable in the future.

Both Republicans and Democrats are suggesting that the protections this clause offers are too broad to be sustainable. The current administration already weakened it, carving out exceptions for adult content under the auspices of FOSTA/SESTA. Republican Senator Ted Cruz has either misspoken or misrepresented the law to encourage its removal. And senior representatives have refused to testify in support of the law when asked to do so by key committees.

Three front-runners for the Democratic Party nomination are all targeting the law, too. Former Vice President Joe Biden told The New York Times that, if elected, he would see the law “revoked, immediately.” Senator Bernie Sanders has pledged to reform the law, while Senator Elizabeth Warren is pushing for wider reforms of the technology industry altogether.

Communications Decency Act 1996, 47. USC § 230

(c) Protection for ”Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

The law is Section 230 (or s230), Communications Decency Act 1996, which insulates platform holders from legal reprisals based on the things we say and do online. Think of it as a near-universal get-out-of- jail-free card for websites that host content that may be defamatory or obscene.

Dr. Corynne McSherry, legal director at the Electronic Frontier Foundation, did testify before the house Energy and Commerce Committee last year to defend s230. She explained: “If you have ever forwarded an email — whether a news article, a party invitation or birth announcement — you have done so with the protection of Section 230.”

Section 230 is based on legal principles that date back to an obscenity case from the ’50s, in which a California bookstore owner was sued for the content of a book they sold. The Supreme Court found that it would be impossible for the owner to have read every title in their store. So while there would be an issue if they knew about the obscene material, it would be very difficult to prove that they did, and to hold them to account for it.

Two legal cases in the early ’90s muddied the situation, prompting two senators to sponsor a law to clarify the role of web platforms. Section 230 was the outcome and essentially applied the bookstore rule, even if that wasn’t the original intention of its creators. (They had hoped to encourage proactive moderation but allow protections should they miss something.)

If Section 230 is killed without proper thought to what comes next, then big chunks of the internet will become unusable. Dr. McSherry, in testimony, said that platforms like Facebook would have to use “extreme caution in their moderation” to limit their own liability. That would mean censoring everything and anything that could prompt a legal challenge or shutting down comment threads entirely.

Professor Jeff Kosseff is author of the book The Twenty Six Words That Created the Internet and an expert in s230. He believes that killing it off will provoke a flurry of cases for every major site, saying that “Facebook will be sued a lot.” And this case law will likely decide the ultimate fate of the internet in the absence of statute. “The problem is you don’t have many [legal] cases,” he told Engadget, “because Section 230 is such a strong defense.”

“There are other platforms than Facebook,” said Kosseff, “and Facebook probably won’t be harmed as much by [the] repeal.” Smaller sites, which “don’t have the ability to absorb the litigation costs like Facebook does,” and lack the money to implement comprehensive moderation, will be in serious jeopardy. McSherry said that any repeal would force sites to take a heavy-handed approach, removing “far more speech” than necessary.

And we’ve already seen glimpses of this with the fallout from FOSTA/SESTA, which forced platforms to mass-censor adult content. Because of the legal risk inherent with hosting the material, many sites issued blanket bans, like Tumblr, which saw its user numbers (and value) plummet in the process. YouTube demonetized and suppressed educational material for LGBTQ teens. Even Instagram was found to have blocked a feminist newsletter from advertising because it intimated the publication was pushing an escort service.

It’s been suggested that withdrawing s230 will be less problematic now because it’s possible to automate much of the content moderation. The tale of Facebook’s very human moderators put paid to that idea and, for now at least, automation clearly isn’t going to work for many cases.

AI expert Dr. Kate Devlin at Kings College, London, says that “AI carries biases, lacks nuance and is very bad at determining context.” She added that “we’re already seeing the effect of blanket decisions, like Facebook banning nipples, but also breastfeeding pics.”

The end result, however, is that any website that relies on user-generated content, from YouTube through to Goodreads, is in trouble. “Say Yelp gets a complaint from a restaurant that got a one-star review,” said Kosseff “and says that it’s inaccurate. With Section 230, Yelp can do whatever it wants with that,” but without it, “Yelp is in a lot of trouble if it keeps it up.” In that situation, it has two choices: fight the onslaught of legal cases from bad reviews or take the content down. The end result is simple, “Yelp starts losing all of its negative reviews, and Yelp isn’t incredibly valuable if all it has is five-star reviews.”

And when those cases came to court, the future of the internet would be left in the hands of potentially partisan judges. “There’s no way to know with certainty how courts would interpret [the law],” he said, adding “a lot of it would depend on which judges got to the cases first.” In many regards, luck is a key factor, “One of the reasons Section 230 has been such a strong defense is that the first federal appellate court judge […] was a strong free-speech advocate who used to be a newspaper editor.”

Given the current political climate and the partisan nature of both politics and law in the US, we can’t assume that judges would be ready to defend the status quo. It’s likely that, while the system has numerous flaws and allows bad actors to flourish, the alternative could be much worse.

The topic of Section 230 came up when the New York Times asked Biden about Facebook and the fact that the company rejected his request in October to remove a false Donald Trump attack ad. In one of the more raw moments of the interview, Biden went on the offensive against Mark Zuckerberg and Facebook.

“He knows better. And you know, from my perspective, I’ve been in the view that not only should we be worrying about the concentration of power, we should be worried about the lack of privacy and them being exempt, which [The Times are] not exempt,” said Biden. “[Section 230] should be revoked because [Facebook] is not merely an internet company. It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy.”

If the former vice-president were to become the next US president, any attempt to repeal Section 230 would likely face stiff resistance from Silicon Valley. Companies like Google make “substantial” contributions to right-wing organizations to maintain Section 230 as the legal status quo. At the same time, the issue is likely one of the few areas where he could find bipartisan support. Some conservatives such as Senator Ted Cruz (R-TX) have said the US should repeal that part of the CDA because it allows tech companies to censor conservatives.

The hearing will also include experts from the Electronic Frontier Foundation, Alliance to Counter Crime Online, Boston University and UC Berkeley.

There’s no guarantee this will lead to legislation. However, it’s entirely possible that existing laws will face a challenge from both sides of the aisle. Democrats like Beto O’Rourke have argued that internet firms should lose immunity if they “knowingly promote” speech that fosters hate and violence. At the same time, Republicans like Josh Hawley have promoted legislation that would strip large sites of immunity if they demonstrate political bias.

Google and Reddit, meanwhile, are likely to fight back. The Internet Association (of which Google and Reddit are members) has argued that conditional safe harbor would force companies to make an “impossible choice” between hosting vile speech and losing the ability to moderate illegal material like extremism. In other words, they’ll likely use the hearing to defend Section 230 and otherwise protect the status quo.

Hepp said she didn’t know that her photo had been taken, and didn’t remember the name or location of the store. She also wasn’t aware of how the photo might have made its way online.

The lawsuit calls on the sites to both take down the pictures and pay damages as compensation.

The chances of success aren’t high. The Communications Decency Act’s contentious Section 230 protects sites against liability for user-uploaded content, including advertisers. Hepp would have to either show that the sites knowingly hosted the photo or target the individuals who uploaded the picture. Most if not all of the sites might be absolved of responsibility. This does illustrate the legal headaches associated with fighting non-consensual photos, though. It’s easy for images to spread online, but difficult to hold the perpetrators (or anyone else) to account.