Key House GOP Member Agrees Tech Industry Should Earn Content Liability Protections

Don’t repeal Section 230, testified University of California, Berkeley School of Information professor Hany Farid. Instead, platforms should have to earn the liability protections, he said: If an internet user can find illegal content and items with reasonable effort, so can Google. Boston University law professor Danielle Citron agreed protections should be an earned privilege. McMorris Rodgers noted discussion during the hearing on what platforms might have to do to earn that right. She warned against hasty attempts to amend or eliminate the statute because of the impact it might have on innovation.

“No one has a right to” the privilege provided by liability protections, Rep. Doris Matsui, D-Calif., told us. “I don’t think anything should be assumed here.” Nobody is “out there saying 230 should be repealed,” Rep. Bob Latta, R-Ohio, told us. “What do we need to do to make sure” the statute is “working,” he asked. Latta didn't answer whether liability protections should be earned.

House Commerce Committee Chairman Frank Pallone, D-N.J., wouldn’t tell reporters whether the panel is undertaking a formal bipartisan review. “We’re concerned about it,” he said. “We’re just having the hearing at this point, and then we’ll see. This is a very important issue.”

McMorris Rodgers dispelled a GOP argument that Section 230 requires political neutrality, saying that was never a congressional requirement. She denounced a proposal from Sen. Josh Hawley, R-Mo., that would have the FTC certify political neutrality for websites (see 1906190047). The White House also reportedly circulated a draft executive order that would direct the FCC and the FTC to police social media content moderation (see 1908230043). It’s not the government’s place to moderate online speech, she said, opposing adopting anything resembling the fairness doctrine for the internet.

Google has policies to address illegal activity on a platform like YouTube, testified Google Global Head-Intellectual Property Policy Katherine Oyama. She cited removal policies for harassment, and said Google cooperates with law enforcement in cases involving illegal activity like drug sales.

The issue is some platforms are responsive to illegal activity, and others aren’t, said Citron. She cited a harassment case in which a man accused his ex-boyfriend of making fake dating profiles on the app Grindr and directing users to the alleged victim’s home and work to play out rape fantasies. Grindr ignored the alleged victim’s repeated complaints, Citron said. She claimed other dating apps banned certain IP addresses to resolve such issues. She said if the statute required a reasonable standard of care, courts would decide what’s reasonable.

Pallone and House Commerce Committee ranking member Greg Walden, R-Ore., aired frustrations about U.S. Trade Representative Robert Lighthizer declining to testify. The committee leaders requested in August that Lighthizer not include Section 230-like language in trade agreements due to the ongoing congressional debate. Walden noted it's in a trade agreement with Japan, and there’s also language in the pending U.S.-Mexico-Canada Agreement. It’s “alarming” USTR is exporting these policies without committee participation, he said. The committee isn’t trying to blow up USMCA, but “we’re getting blown off on this, and I’m tired of it.” Injecting trade agreements with provisions that both Democrats and Republicans find objectionable isn’t a good approach for getting Congress' support, Pallone said. Hopefully, USTR is more responsive in the future to bipartisan requests, Pallone added.

Eliminating Section 230-like language from trade agreements encourages foreign countries to promote “troubling restrictions on speech and innovation,” five tech groups wrote the committee Tuesday. Computer & Communications Industry Association, CTA, Engine, the Internet Association and NetChoice signed the letter, calling language in the USMCA “sufficiently flexible to reflect new changes to a legal framework.”

Reddit CEO Steve Huffman outlined two extreme scenarios with the elimination of Section 230 protections: No content moderation at all, or the removal of all content that’s even remotely problematic. “I’m not sure Reddit as we know it could exist in a world where we have to remove all user-generated content,” he said.

CDA 230 should be revised so anything illegal in the physical world is illegal online, testified Alliance to Counter Crime Online Executive Director Gretchen Peters. The wealthiest companies should have to make sure they’re not hosting illegal activity like drug sales, she said, arguing it's not an unfair burden.

Bring 230 back to its original purpose, said Citron, so good-faith actors engaged in reasonable content moderation have immunity. Companies can also be more transparent about content moderation, she said. Transparency is critically important, said Oyama, citing Google’s quarterly reports on content removal.