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Republican senators propose bill that erodes Safe Harbour protections for online platforms

US Senate

Three Republican members of the US Senate have introduced a new bill that proposes major changes to the country’s law that protects digital platforms from bearing liability for content posted by their users. The proposed Online Freedom and Viewpoint Diversity Act would take away protections from liability, that is, Safe Harbour, which is currently given to intermediaries under Section 230 of the Communications Decency Act.

The new bill removed the companies’ right to remove “otherwise objectionable” content, thereby severely limiting the type of content they can take action against.

What is Section 230, and why is it important?

Section 230 is a provision in the Communications Decency Act of 1996. It protects companies operating on the internet from liability for any content their users may post. For instance, if a user posts hate speech on a social media platform like Facebook, it is the user, and not Facebook, who can be subjected to legal action. It basically ensures that the companies are not treated as publishers of this content.

The protections offered by Section 230 also allowed companies to freely moderate content users posted on their platforms. It allowed platforms to impose their own community standards on users, and remove content that may not abide by these standards. Over more than two decades, this arrangement contributed to the development of massive social media platforms such as Facebook, Twitter and YouTube, allowing them to grow without worrying about legal action for their users’ conduct.

What will the new proposed bill do to Section 230?

Curtail discretionary power of companies to decide what is “objectionable”: Section 230 allows companies to remove — through what is termed as “Good Samaritan” blocking — content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable“. The phrase “otherwise objectionable” is what gives companies the wide freedom to decide what is, in fact, objectionable on their platforms, and hence impose their own community standards based on this.

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  • The proposed Online Freedom and Viewpoint Diversity Act proposes to remove this phrase and replace it with “promoting self-harm, promoting terrorism, or unlawful”. This change would require companies to town down their content moderation activity greatly.
  • The bill also removes the phrase “considers to be”, and replaces it with “objectively reasonably belief”, further curtailing the companies’ ability to take down content. Companies would have to prove that any content they take down can “objectively” fall under the types of speech not allowed as part of “Good Samaritan” blocking.

Change of definition of “information content provider”: Currently, Section 230 defines “Information Content Provider” as any person entity that is responsible for the creation or development of information provided though the internet. The new bill proposes to include to this definition any person or entity that “editorialises or affirmatively and substantively modifies the content of another person or entity”.

  • Through this change, Twitter, which recently fact-checked president Trump and flagged his Tweets, would be categorised as an “information content provider”. Earlier this year, in May, Twitter flagged tweets by Trump about mail-in ballots and added misinformation labels to them. This was, in fact, the trigger behind Trump’s offensive against social media companies. Within days of his tweets being flagged, Trump issued an executive order seeking scrutiny over safe harbour protections afforded to the companies.
  • The change suggests that fact-checking by companies on their platforms could also qualify them as information content providers, thereby disqualifying them from protection against liability offered by Section 230.

Move to bring social media platforms to heel

The bill proposed by the three Republican senators — Roger Wicker (Missouri), Lindsey Graham (South Carolina) and Marsha Blackburn (Tennessee) — is the latest move against social media platforms who have been accused of censoring conservative and right-wing content by Republicans.

In a statement made after introducing the bill, Graham said that social media companies were routinely censoring “valid political speech”. “Social media companies are routinely censoring content that to many, should be considered valid political speech. This reform proposal addresses the concerns of those who feel like their political views are being unfairly suppressed,” he said.

On Tuesday, US president Donald Trump lashed out against Twitter. He retweeted a picture of Senate majority leader Mitch McConnell, which was edited to make him look like he was wearing a Russian military uniform, and labelled him as as “Moscow Mitch”. Finding offence against McConnell’s unflattering characterisation in the picture, Trump asked why Twitter was allowing “phony pictures” such as these to stay up, while simultaneously taking down Republican and conservative pictures and statements “that are true”. Calling Big Tech companies “biased”, he called on McConnell to pass legislation that would repeal Section 230 of Communications Decency Act.

Democrat Joe Biden also want to remove Section 230 protections, but for a different reason

Joe Biden, the Democratic challenger to Trump in the upcoming presidential election, has also called for the removal of Section 230. In January this year, Biden had told the New York Times that internet companies were able to get away with “propagating falsehoods” because of Section 230 protections. He said that if a newspaper could be held liable for false information published by them, but companies like Facebook were exempt because they were tech companies. The Verge reported in May that while Biden had opposed Trump’s executive order, his position on Section 230 remained unchanged.

Graham and Blackburn had previously introduced bill ending encryption

Graham and Blackburn, who have introduced this bill, have also set their eyes on breaking encryption in devices and communications. Along with with Republican Senator Tom Cotton (Arkansas), they had proposed the Lawful Access to Encrypted Data Act in June this year which wants service providers to break end-to-end encryption and provide backdoors to encrypted devices. The bill aimed to end the use of encrypted technology being used by terrorists and other bad actors, thereby giving law enforcement and courts a way to access information that could help in assisting investigations.

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