Sen. Graham Withdraws CDA S. 230 Legislation; Hawley Measure Fails
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., withdrew his Section 230 legislation at Thursday’s markup, setting his sights on updating the tech industry’s liability shield in 2021. An amendment from Sen. Josh Hawley, R-Mo., which would establish a private right of action for individuals to sue platforms, failed 5-16 with support from one Democrat, Sen. Sheldon Whitehouse of Rhode Island.
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Sen. Dick Durbin of Illinois, who’s seeking the top Democratic seat on the committee (see 2011250031), told us he “could be” supportive of a private right of action under certain circumstances: “I’m glad we started the discussion today. I haven’t taken any hard and fast positions.”
Whitehouse, who’s also seeking the top seat, told reporters: “It’s not clear where and when there should be a private right of action and who should have it and what safeguards there should be around it. So I think there’s work to be done, but I did want to express at least one vote from the Democratic side supporting the concept of private right of action.”
Graham’s Online Content Policy Modernization Act (S-4632) would remove the term “otherwise objectionable” from the statute and replace it with “some guidance,” he said. Removing the language would limit platforms’ ability to “censor and edit,” he said. He merged the proposal with a copyright bill that would create an alternative dispute resolution program for copyright small claims.
There hasn’t been an “adequate hearing” for the proposal to proceed, said ranking member Dianne Feinstein, D-Calif., who’s stepping down from her party's top seat. Whitehouse said he would vote against the legislation but was eager to vote on some “restriction” on liability protections: “This cake isn’t even in the oven yet, let alone cooked, so I think it’s premature to bring it to the committee for a vote.” He urged Graham not to take his opposition as an unwillingness to reach a compromise, saying Section 230 should be “peeled back” in a broader way.
Sen. Richard Blumenthal, D-Conn., agreed in principle on the need for a private right of action, saying there will be work going forward: “This bill isn’t going to pass in this Congress.” Graham agreed, saying he had “no illusions” about its becoming law this Congress.
Hawley’s amendment would make company terms of service legally enforceable so users can go to court and redress the balance of power, said Hawley. Several other amendments were introduced but not considered. Voting in favor of Hawley’s amendment were Graham, Whitehouse, Hawley and Republicans Ted Cruz of Texas and John Kennedy of Louisiana. Vice President-elect Kamala Harris, D-Calif., was absent and didn’t vote.
Congress shouldn’t support regulation through litigation, said Sen. John Cornyn, R-Texas, calling it an abdication of Congress’ responsibility. Hawley’s amendment seems to present a disincentive for companies to remove harmful content, said Feinstein, saying the issue is “more complicated than we realize.”
That President Donald Trump was willing to veto the National Defense Authorization Act if Section 230 wasn’t repealed (see 2012020068) shows how important the issue has become, said Graham. Graham wanted to send a signal with the last markup of the year, saying one of the most important issues is to rein in the abuse of this much power in the hands of so few.
Big Tech censorship is getting worse, said Cruz, citing YouTube’s decision this week to remove content that alleges “widespread election fraud” as the worst example. Those who disagree with a claim about election fraud can share their own opinions, said Cruz. Big Tech “isn’t even pretending anymore,” he said, noting that a Reuters poll showed 39% of Americans believe the election was “rigged.” Section 230 shouldn’t be eliminated but needs to be updated and preserved for new entrants, said Sen. Marsha Blackburn, R-Tenn. Sen. Mike Lee, R-Utah, voiced support for the underlying bill, saying Graham was willing to make several changes on his behalf before the markup.
The bill will make “the fight against online voter suppression harder,” tweeted Center for Democracy and Technology Free Expression Project Director Emma Llanso: Republicans are “continuing to push the idea of adding elements to 230 that would require a factual inquiry by a court (to assess 'objectively reasonable beliefs' and 'good faith' behind moderation decisions),” making litigation much more expensive. Computer & Communications Industry Association President Matt Schruers called the bill “another politically motivated attack on Section 230, this time bolted onto an unrelated copyright bill -- the latest episode in the President’s war on social media services’ efforts to stamp out disinformation and other objectionable content.”