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How the Capitol riot revived calls to reform Section 230

Republican Section 230 reform is dead. Long live Democratic Section 230 reform.

Senator Josh Hawley sitting in a seat in Congress surrounded by empty seats.
Sen. Josh Hawley (R-MO) before the joint session of Congress and Capitol riot on January 6.
Drew Angerer/Getty Images
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Big Tech companies from Facebook to Apple took swift action in the wake of the attack on the US Capitol, banning the people and content that helped incite and organize a violent mob that left at least five people dead and dozens injured. The most prominent ban was of President Trump, who arguably got elected because of the very platforms that have now turned against him.

But those measures came too late for some Democratic lawmakers who have sounded the alarm about misinformation and extremist content on the internet for months, even years. And soon they’ll have the power to do something about it. Section 230 reform, which President Trump tried and failed to enact, is back on the table. This time, it will likely look a little different from what he wanted.

Section 230 is the law that gives internet platforms immunity from what their users post on them. It arguably allows the internet as we know it to exist, but this protection has become a source of concern for members of both parties who believe those platforms cause harm. Where they diverge is what those harms are. While Republicans believe platforms are unfairly censoring conservative speech, some Democrats believe platforms are amplifying misinformation and extremist content.

Now, Democrats have an example with which to make their case, one that directly affected almost every member of Congress.

Tech companies took action. Democrats say it’s not enough.

Several tech companies have either cleaned up their own platforms, removing users and posts that promoted violence and conspiracy theories, or shut off the ability of other “free speech” platforms to do the same.

Nevertheless, Sen. Richard Blumenthal (D-CT), who sponsored a bipartisan Section 230 reform bill last March, told Recode that the Capitol attack will “renew and focus the need for Congress to reform Big Tech’s privileges and obligations. This begins with reforming Section 230, preventing infringements on fundamental rights, stopping the destructive use of Americans’ private data, and other clear harms.”

Big Tech’s self-imposed reforms, Blumenthal argues, are both too late and politically convenient.

“It took blood and glass in the halls of Congress — and a change in the political winds — for the most powerful tech companies in the world to recognize, at the last possible moment, the profound threat of Donald Trump,” he said. “The question isn’t why Facebook and Twitter acted, it’s what took so long and why haven’t others?”

Rep. Anna Eshoo (D-CA), who co-sponsored the Protecting Americans from Dangerous Algorithms Act with Rep. Tom Malinowski (D-NJ) last October, which takes away immunity protections from platforms that amplify certain types of hateful or extremist content, is also ready to take action on Section 230 reform. She’ll be updating and reintroducing her bill “early this Congress,” she told Recode.

“Twitter, Facebook, YouTube, and many smaller platforms gave violent rioters a platform to organize and share dangerous misinformation, while allowing President Trump to inspire and encourage insurrection and sedition against our republic,” Eshoo told Recode. “These companies’ reckless actions and inactions played a colossal role in Wednesday’s attack on our nation’s Capitol that must be addressed.”

She added, “Congress and the incoming administration must prioritize taking swift and bold action on reforming Section 230 to hold these companies accountable and protect our democracy ... These companies have shown they won’t do the right thing on their own.”

They aren’t alone in their calls to reform Section 230 to address the violent content and misinformation social media companies have allowed to proliferate on their platforms.

Joe Biden said a year ago on the presidential campaign trail that he wanted Section 230 to be repealed, calling Facebook “totally irresponsible” in how it handled misinformation and privacy and saying the company should be subject to civil liability just like anyone else. Biden hasn’t commented on Section 230 since, but a campaign spokesperson told Recode last November that his feelings on the subject hadn’t changed.

Last October, members of the Senate Commerce Committee met with CEOs from Facebook, Google’s Alphabet, and Twitter to discuss the law. Republicans took that time to rail against those platforms for perceived censorship of conservative voices. Democrats, however, worried that the platforms were helping extremists incite and organize — concerns that seem prescient now.

Sen. Tammy Baldwin (D-WI) said right-wing militias on Facebook were an “ongoing issue.” Sen. Amy Klobuchar (D-MN) pointed out that the platforms had a financial incentive to keep users on them for as long as possible, and that Facebook did this by amplifying politically divisive content and conspiracy theories. And Sen. Gary Peters (D-MI) cited a foiled plot to kidnap his state’s governor, Gretchen Whitmer, part of which was planned in a private Facebook group, as an example of harmful content on the website.

“Here’s the truth: Violence and hate speech online are real problems,” Sen. Ed Markey (D- MA) said. “Anti-conservative bias is not a problem ... The issue is not that the companies before us today are taking too many posts down. The issue is that they are leaving too many dangerous posts up.”

After the riots, Markey told Recode that Congress “must act,” and he hoped to see bipartisan action to check Big Tech and its “profits before people” business model that has given rise to, among other things, privacy invasions, anticompetitive behavior, and harmful content.

“I anticipate the debate around Section 230 isn’t going to go away,” Markey said. “But I hope that my Republican colleagues will stop feeding the false narrative about anti-conservative bias and join me in addressing urgent problems online.”

He added: “These are not abstract problems. They have real world implications, so we cannot afford to continue to drag our feet and fail to enact binding safeguards.”

The failed Republican case for Section 230 reform

Section 230 proponents surely breathed a sigh of relief once the Republican Party that pushed for its repeal lost much of its power to make good on its promises when it lost the presidency and then the Senate.

Not too long ago, Section 230 reform was a bipartisan issue. The two parties came together in 2018 to amend the law with FOSTA-SESTA, which removed Section 230 immunity from platforms used for sex trafficking. That said, some Democrats who voted to pass FOSTA-SESTA have since changed their minds, citing the law’s unintended consequences of endangering consensual sex workers. And as Republicans made their vision of Section 230 reform into their rallying cry, it may have become less palatable to Democrats, who turned to antitrust legislation as a way to check Big Tech’s power.

Republicans increasingly politicized Section 230 reform during the second half of President Trump’s single term, seeing it as a way to punish social media platforms for perceived biased moderation and censorship of conservative voices. Sen. Ted Cruz (R-TX) frequently cited Section 230 — and the Big Tech companies it protected — as the “single greatest threat to our free speech and democracy.” Sen. Josh Hawley (R-MO) introduced multiple bills that targeted Section 230 as part of his anti-Big Tech push.

Repealing Section 230 became a sort of white whale for President Trump; he tried to repeal it through his Attorney General Bill Barr, executive orders, and the Federal Communications Commission (FCC). Trump ended 2020 demanding that Congress include Section 230 repeal in unrelated bills for stimulus checks and military spending — even going so far as to veto the latter because it didn’t include it.

Trump failed: Congress overrode his veto; Barr walked away before Christmas; and FCC chair Ajit Pai, with one foot out the door, told Protocol that he would not move forward with any FCC rule-making on the law. Meanwhile, Republicans will soon be the minority party in both houses of Congress, and Cruz and Hawley, Section 230 reform’s loudest cheerleaders, have become pariahs. It’s doubtful that many will listen to what they have to say about Big Tech or anything else for a while.

The case against Section 230 reform

While laws that target extremist content on social media may seem like an especially attractive prospect immediately after the riot, free speech advocates warn that, like FOSTA-SESTA, any change to Section 230 may have unintended consequences.

“We understand the desire to permanently suspend [Trump] now, but it should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions — especially when political realities make those decisions easier,” American Civil Liberties Union (ACLU) senior legislative counsel Kate Ruane said in the statement. “President Trump can turn to his press team or Fox News to communicate with the public, but others — like the many Black, Brown, and LGBTQ activists who have been censored by social media companies — will not have that luxury.”

The Electronic Frontier Foundation (EFF) has long championed Section 230 as the most important law that protects free speech on the internet. Unsurprisingly, the digital rights advocacy group is opposed to changing it.

“Even before last week’s shocking events, it was so strange to watch the way that both sides of the aisle had taken to blaming Section 230 for everything they didn’t like about the big social media companies, and often making contradictory claims about how undermining Section 230 would change online speech,” Elliot Harmon, EFF’s interim senior activist, told Recode. “The government can’t require companies to remove lawful speech from their platforms, and Section 230 has no bearing on that.”

What government can do, Harmon said, was pass antitrust and privacy legislation that would create more online platforms and reduce Big Tech’s dominance of the marketplace.

“If there were 50 major players in the online social networking market rather than five, then the speech moderation decisions Facebook or Twitter make would not have the outsized influence they have today over online speech,” Harmon said.

And there is at least one Democrat who remains opposed to Section 230 reform: Sen. Ron Wyden (D-OR), the law’s co-author.

“Once again, I remind my colleagues that it is the First Amendment, not Section 230, that protects hate speech, and misinformation and lies, on- and offline,” Wyden told Recode. “Pretending that repealing one law will solve our country’s problems is a fantasy.”

Wyden called for rioters to be prosecuted, politicians who egged them on to resign, law enforcement agencies that ignored their threats to be investigated, and said that every outlet — online and off — that “gave oxygen to Trump’s lies about the election” bore some responsibility for the result. But he warned against taking too much action too quickly.

“Congress needs to look no further than 9/11 to remember how badly knee-jerk reactions to tragedies can backfire, and end up harming the least powerful racial, religious and ideological groups in our country,” Wyden said. “It would be a terrible mistake to use this event as an excuse to increase government surveillance, suppress free speech online, or limit the rights of legitimate protesters. In particular, I am certain that any law intended to block vile far-right speech online would inevitably be weaponized to target protesters against police violence, unnecessary wars, and others who have legitimate reason to organize online against government action.”

In one way, Cruz’s attacks on Section 230 were right: with Trump booted from the biggest websites in the world, and alternative platforms like Parler kicked off the services and distributors they need to function, Big Tech has indeed proven to be the arbiter of what speech is allowed on most of the internet. It remains to be seen what that will lead to.

The complete repeal of Section 230 that Trump screamed for on his now-banned Twitter account isn’t likely — that would upend the entire internet — but the kind of reform many Democrats called for is very possible. Ironically, what Trump couldn’t achieve as president may well happen under his successor, and it will be due, in part, to Trump’s own actions.

It won’t be the reform Trump wanted, and he won’t be on most social media platforms to see how they change. He’s no longer welcome on the sites he loved and hated the most.

Update, January 12, 2:45 pm ET: Updated to add comment from Sen. Markey.

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