Durbin Wants Section 230 Repeal Should Congress Punt on Kids’ Safety

Ranking member Lindsey Graham, R-S.C., is seeking Durbin’s support for legislation (see 2402160058) that would repeal Section 230, the tech industry’s shield against liability for hosting third-party content on platforms. Durbin told us he will see what happens with Judiciary-approved legislation on kids’ safety. “If we can’t make the changes with the bills we’ve already passed, 230 has to go,” Durbin said.

Graham told us he approves of Durbin's plan. “I’m ready to go right now,” Graham said before heading to the Senate floor and seeking unanimous consent for committee legislation on child safety. “I’m going to prove to you here in a minute nothing’s going to change.”

Indeed, Sens. Ron Wyden, D-Ore., and Cory Booker, D-N.J., objected to Graham’s call for UC on the floor (see 2403070039). “I’d like to work with you if I can, but [I’m] going to make you famous,” Graham said, referring to his making objections public by requesting UC.

Passing kids’ online safety legislation is more realistic than obtaining a Section 230 repeal, Senate Privacy Subcommittee Chairman Richard Blumenthal, D-Conn., told us in response to Graham’s plans. Blumenthal introduced the Kids Online Safety Act with Sen. Marsha Blackburn, R-Tenn., (see 2401300086). “Passing a repeal of Section 230, which I strongly favor, is far more problematic than passing the Kids Online Safety Act (KOSA), which has almost two-thirds of the Senate sponsoring,” said Blumenthal. “I will support repealing Section 230, but I think the more viable path to protecting children, as a first step, is to pass the Kids Online Safety Act.”

Similarly, Section 230 gives the tech industry “too much protection,” Sen. Chuck Grassley, R-Iowa, told us. “I think I’ve said for the last two or three years, I would” support a Section 230 repeal, he said. “I ought to reserve a little bit of judgment to change my mind, whether or not it’s outright repeal or whether it’s reform, but I do think 230 creates some major problems and gives too much protection to people who create a lot of problems in our society.”

“All options should be on the table looking at what’s needed to protect kids,” said Sen. Ben Ray Lujan, D-N.M. “Congress needs to take action here.” Asked if repealing Section 230 is realistic, he said, “Anything’s possible in the Senate -- I’ve learned in my time here."

The Judiciary-passed bills would do more harm to children because they weaken encryption standards on social media, Wyden has said about the Earn It Act and the Strengthening Transparency and Obligation to Protect Children Suffering from Abuse and Mistreatment Act. As co-author of Section 230, Wyden has consistently blocked UC attempts kids’ safety legislation. The better approach, he has argued, is passing legislation that increases resources for law enforcement and prosecutors.

Section 230 immunity hinges on the question of how much tech platforms are controlling editorial discretion, Senate Intelligence Committee ranking member Marco Rubio, R-Fla., told us. “Are these people forums or are they exercising editorial controls that would make them publishers?” he said. “I think there are very strong arguments that they’re exercising editorial control.”

The U.S. Supreme Court heard debate on the question of editorial discretion at two oral arguments in February in NetChoice v. Paxton (22-555) and Moody v. NetChoice (22-277) (see 2402260051). Several conservative justices and Justice Ketanji Brown Jackson seemed open to applying common carrier standards based on the services platforms are offering. Justices seemed more open to the common carrier argument concerning messaging and email services.

The majority of the court showed interest in “having a really close look” at Section 230 in the Taamneh and Gonzalez cases as well, said Dani Pinter, senior legal counsel at the National Center on Sexual Exploitation Law Center. She noted, however, the high court didn’t make determinations about Section 230 in its ruling in those cases. While justices can provide clarity on Section 230 in the latest cases, legislative “intervention” like KOSA is still needed, she said.