Summer of CDA 230

Since my last series of posts on this topic, there has been an epic surge of hot nonsense government proposals on CDA 230.

First up: Donald F. Trump’s executive order purporting to take social media companies to task for, well . . . see for yourself:

Don’s Executive Order in response to this injustice is performative nonsense (read Eric Goldman’s comprehensive overview for more detail), but it is passing strange how “conservatives” have suddenly embraced government control of private speech. I’m old enough to remember when Republicans actually understood how the First Amendment works. Citizens United, anyone? 

Attorney General Bill Barr dutifully followed this up with a set of “Recommendations for Section 230 Reform.” These include broadening takedown requirements, adding disclosures, narrowing CDA 230 immunity for takedown decisions, and specifying that CDA 230 immunity doesn’t apply to antitrust enforcement (I don’t know that anyone thought that it did, but whatever). If you are looking for conservative, small-government principles . . . you’re aren’t going to find them here.

Next up was the Bad Josh, the would-be “Product Manager for the Internet,” Missouri Senator Josh Hawley. Hawley and his crowd of boob-baiting fellow Republican Senators (all of whom are smart enough to know better) introduced an absolute turd of a bill designed to undercut CDA 230. While it has the virtue of only applying to the largest social media sites (thanks for that, I guess), it also doesn’t appear to do anything other than create a cottage industry of nuisance lawsuits. On the bright side, that creates a nice contingency plan for me, should I decide on a late-career switch back to being a litigator.

Closely following Hawley’s offering was the bipartisan PACT Act, sponsored by Hawaii Senator Brian Schatz and South Dakota Senator John Thune. While this bill includes some generally-unobjectionable disclosure standards, it carves back CDA 230 immunity, creates a notice-and-takedown regime, and imposes some truly laughable requirements (like a live telephone call center to respond to inquiries about moderation decisions). 

Oh, and at the same time there’s ALSO the bipartisan, oh-so-self-righteously-named “EARN IT” Act which would, that’s right, make platforms earn their CDA 230 immunity by satisfying a federal commission that they are doing all they can to prevent online sexual exploitation of children. The devil is always in the details when it comes to “think of the children” legislation like this, but it’s a safe bet that putting the thick, sweaty thumb of government on site operations in such a manner doesn’t bode well for innovation or privacy.

All in all, it’s already been a VERY busy summer for CDA 230, and it isn’t even July yet. These proposals are driven by everything from legitimate concern over edge-case issues to frustration at the reach of the First Amendment to bad-faith posturing to find any sort of brickbat to take to “Big Tech.” 

But we must keep in mind that the simplicity of CDA 230 — a too-rare example of government regulation getting out of the way and providing breathing room for new technology — has been a massive factor in enabling the growth of the internet as we know it over the last 24 years. Just because a multiplicity of voices are calling for change doesn’t mean that change is necessary or wise.   

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