Maybe more so than any other piece of tech legislation, Section 230 of the Communications Decency Act has really been taking a beating by members of Congress as of late whether by democrats who want to see it reformed, or republicans who seem intent to repeal it entirely.
A bipartisan bill seeking to narrowly reign in websites for failing to report illegal drug sales or threats of violence is the latest to open this historically messy and complicated can of worms. Creatively called the “See Something, Say Something Online Act,” the draft is soon to be introduced by Senators Joe Manchin (D-WV) and and John Cornyn (R-TX) as a way to hold platforms like Facebook and Google—or really, any site with some degree of user-generated content—responsible for any illegal purchases that might be happening on their platforms. Under the draft, the companies behind these sorts of platforms would be required to report any potentially shady purchases to local authorities, or risk being held liable for that failure.
“The protections afforded to the tech sector under Section 230 of the Communications Decency Act have given rise to innovation and the U.S. tech sector,” Manchin said in a statement. “But it also has a dark side, shielding companies from the proliferation of illegal content on their platforms.”
“It’s time to amend Section 230 to reflect the way that the Internet impacts our society today—both good and bad—because even one opioid sold online is too many,” he added.
To give a brief recap of what Section 230 actually entails, it broadly insulates websites so that they aren’t held liable for what users post on them. Effectively, it allows sites—particularly social media companies—to function without being sued on the daily.
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Manchin and Cornyn seem content to leave 230 largely untouched. But the draft of the bill has a caveat not only for illicit drug sales within a website’s user base, but also any acts of “domestic or international terrorism,” or anything that can broadly be defined as a “violent crime,” which is defined per the bill as:
an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another
White Nationalist and militant separatist groups on Facebook, for example, could become even more of a headache for the company under the bill, since “threatening” to use “physical force” against another group of people is pretty much all they do. You could also argue that some of President Trump’s posts across the platforms have incited violence as well. What might happen to these companies if they lost the protection of section 230 remains an open question.
Even if the broad language around threats of violence was narrowed or removed, the basic proposition of reporting potential drug sales is it’s own mess. Aside from the difficulty that goes into defining what a “suspicious transmission” since 2018, Facebook, in particular, has struggled with a chunk of its users taking to its various platforms in order to buy and sell drugs. And despite swearing that it’s cracking down on this exact practice, its success seems to be limited.
It doesn’t inspire confidence that Manchin and Cornyn liken their anti-drug bill to the requirement of financial institutions to report deposits of $10,000 or more to the IRS. Even if Facebook or Instagram or Youtube could somehow automate a way to detect when a particular opioid-related term is used on their sites, there’s virtually no way for moderation tools to tell the difference between a potential sale and a recovery group without scaling up human oversight to an impossible degree.
This isn’t the first time that well-meaning politicians have tried using banks as a roadmap to wrangle tech companies. At the end of August, David Cicilline, the Democratic chairman of the House’s antitrust subcommittee, floated to Bloomberg the idea of potentially revamping the 1933 Glass-Stegall Act as a way to potentially break up the tech giants the same way investment banks and retail banks were broken up in the aftermath of the Great Depression. It’s a good-faith attempt that nonetheless falls apart at the seams once you realize that big tech companies and big banks simply aren’t structured the same way.
We here at Gizmodo dot com don’t have a crystal ball to see into the future of tech policy, but considering how popular it is to kick Section 230 right now, it’s unlikely that this proposal will be the last, or even the one that sticks.