By: Peter Shanley
On February 5, 2021, Senators Amy Klobuchar (D-MN), Mark Warner (D-VA), and Mazie Hirono (D-HI), introduced a bill in the United States Senate that designated the SAFE TECH Act. The intent of this act is to alter Section 230 of the 1996 Communication Decency Act (“CDA”) to provide tech platforms like Facebook and Twitter with an increased level of legal responsibility to monitor the content posted by their users.
Currently, Section 230 of the CDA provides limited protections to online platforms for content that third parties create and distribute through their services. Although, website owners and app developers will still be held liable if they create any illegal content, knowingly host illegal content, or otherwise engage in conduct that violates any other federal criminal laws. The senators introducing the bill have declared that their focus is to require these platforms to also curb things that happen on their sites such as “cyber-stalking, targeted harassment, and discrimination.”
With any type of legislation such as this, it runs the risk of encountering challenges based on First Amendment free speech protections. Since the CDA was implemented, the internet has drastically changed, and the senators introducing the bill believe that an update is necessary to protect the interests of the public. Senator Warner, a former technology entrepreneur and the Chairman of the Senate Select Committee on Intelligence has stated that “Section 230 has provided a ‘Get Out of Jail Free’ card to the largest platform companies even as their sites are used by scam artists, harassers, and violent extremists to cause damage and injury.”
Congress initially enacted the CDA as Title V of the overarching Telecommunications Act of 1996 to prevent minors from gaining access to sexually explicit materials on the internet. Initially, the CDA was not going to be included in the Telecommunications Act but was then offered as an amendment in the Senate after a series of congressional hearings on the importance of anti-pornography efforts with minors on the internet. The drafters of the CDA attempted to safeguard the Act against any constitutional challenges under the First Amendment by targeting material subject to the prohibition under the act.
This material was obscene language, which is not protected by the First Amendment. After President Bill Clinton signed the bill into law, the American Civil Liberties Union challenged its constitutionality in a case called Reno v. American Civil Liberties Union in 1997. The Court ruled the CDA to be unconstitutionally overbroad because it suppressed a significant amount of protected adult speech as a byproduct of protecting minors from potentially harmful speech found on the internet.
The core components of the SAFE TECH Act would fundamentally alter the language of Section 230 to no longer offer protection in situations where payments are involved, something previously protected. Also, the new bill would open internet companies to an increased level of civil liability in some cases. The bill would provide victims of cyberstalking, targeted harassment, discrimination, and wrongful death the right to file lawsuits against those companies rather than absolutely blocking those kinds of suits. This level of liability is where the majority of the concern rests with critics of Section 230 of the CDA, and what has driven the push to pass the SAFE TECH Act.
One of the original drafters of the CDA and a critic of the new legislation, Senator Ron Wyden (D-OR), commented in regard to the SAFE TECH Act that, “[u]nfortunately, as written, it would devastate every part of the open internet, and cause massive collateral damage to online speech. Creating liability for all commercial relationships would cause web hosts, cloud storage providers and even paid email services to purge their networks of any controversial speech.”
In general, there has been a renewed sense of urgency with legal issues concerning the internet since the terrorist attack on the United States Capitol on June 6th, 2021. While Section 230 does not directly address how domestic terrorists use internet platforms to organize, the increased liability is a good first step to hold Big Tech companies accountable for what occurs on their sites. Senator Amy Klobuchar put it perfectly when she stated, “[w]e need to be asking more from big tech companies, not less. . .Holding these platforms accountable for ads and content that can lead to real-world harm is critical, and this legislation will do just that.”
When it comes to First Amendment concerns, the legislation will most likely be challenged on the basis that the increased liability for internet platforms will prompt them to create a lower standard for controversial speech on their sites. This will create a grey area where the majority of challenges to the SAFE TECH Act under the First Amendment will likely be brought.
Student Bio: Peter Shanley is currently a 2L at Suffolk University Law School and graduated from Providence College in 2019 with a B.S. in Political Science and Global Studies.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
