Senator Loeffler's New Section 230 Reform Bill Would Threaten Encryption And Pressure Websites To Keep Spam & Porn

from the sorry,-your-spam-filter-violates-the-law dept

Senator Kelly Loeffler has apparently jumped on the grandstanding bandwagon in trying to destroy Section 230 of the Communications Decency Act without understanding the first thing about how any of this works. Loeffler was already a co-sponsor of Josh Hawley's latest dumb bill to reform Section 230 and somehow decided that she had to introduce her own, even dumber, bill. It is clear that Loeffler, the wealthiest elected official in Congress (by a lot), has never spent any time with the actual working people who do content moderation. Because her bill is written by someone who doesn't understand the first thing about how all of this works.

The key to Loeffler's bill is the unconstitutional dream that some ignorant people have that websites shouldn't be able to remove any speech except speech that isn't covered by the 1st Amendment. Among the things her bill would do is change Section 230's famous Section (c)(1) (the so-called "26 words that created the internet" by saying that no website is liable for 3rd party speech) to only apply if a website is focused on moderating "unlawful" speech. Under her bill (c)(1) would go from:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

To:

(A) In General —No provider or user of an interactive computer service that takes reasonable steps to prevent or address the unlawful use of the interactive computer service or unlawful publication of information on the interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(B) DEFINITION.—For purposes of this paragraph, the term ‘unlawful use of the interactive computer service or unlawful publication of information on the interactive computer service’ includes cyberstalking, sex trafficking, trafficking in illegal products or activities, child sexual exploitation, and any other activity relating to the use of, or publication of information on, an interactive computer service that is otherwise proscribed by Federal law.

This on its own may create tremendous problems for encryption, because one might read this to say, a la the EARN IT Act, that offering end-to-end encryption means that you are not "taking reasonable steps to prevent or address the unlawful use." That's a massive problem, and very, very dangerous.

Then her bill would change (c)(2) -- the less widely used part of Section 230 that says there's no liability for moderation choices targeting "otherwise objectionable" content, would change that part massively to say that it only applies if your moderation is "viewpoint-neutral" and if the site has "a compelling reason for restricting that access or availability."

Finally, the bill would require any website that wants to get these (now greatly limited) protections to put into their user agreement or terms of service something that will "clearly explain the practices and procedures used by the provider in restricting access to or availability of any material" and that if a site restricts content that it "shall provide a clear explanation of that decision to the information content provider that created or developed the material."

In short, this is a bill that would turn Section 230 into what a bunch of ignorant people already think Section 230 is -- one that requires content moderation decisions focused mostly on just speech unprotected by the 1st Amendment, that any content moderation decisions must be done in a "viewpoint-neutral" manner, that it's possible to clearly delineate content moderation policies to the public, and that anyone who has their content moderated should be able to get a full explanation.

Again, these are ideas that sound reasonable if you've never spoken to anyone who's ever done any of this work. Let's just use Techdirt and the way our comments are moderated as an example of why this bill would be insane. As many of you know, our comments are moderated based on user voting, in which users can vote if a comment is "insightful" or "funny" (or both!). They can also vote if a comment is spam/trollish. If a comment meets a key threshold for insightful or for funny, it gets a little icon next to that comment indicating as such (that's a form of content moderation). It is not viewpoint-neutral. It's literally based on the subjective viewpoints of our users, about how they feel. "Neutral" in this context makes no sense. Are we biased against non-insightful, non-funny comments? Hell yes. And we should be.

Of course, these viewpoint decisions are protected by the 1st Amendment, and they would also be if the "bias" were on the silly "left/right" political spectrum. Congress can no more order social media sites to only moderate content in a "viewpoint-neutral" manner than it can tell Fox News or Breitbart to stop only presenting the president's delusional view of the world. They have a 1st Amendment right to do so, just as we have a 1st Amendment right to not give participation trophies to non-funny comments.

Similarly, with our comments that are voted spammish or trollish, if they reach a certain threshold, those comments get "minimized" such that users need to click through to view them. If the comments are truly spammish, then they may get removed entirely. Under Loeffler's bill, we'd then have to spend a ridiculous amount of time explaining to trolls and spammers why we removed or minimized their comments. Which seems like a massive fucking waste of time, and would just lead to dishonest trolls and spammers insisting that their disingenuous arguments were neither trolling nor spamming.

Also, since this is almost entirely determined by user voting, we wouldn't even be able to explain most of the time, since we wouldn't even be the ones making the decisions! I can't explain why our users voted someone's comments to be trollish (or funny or insightful) because I don't know. Yet, under Loeffler's bill... we'd be required to "provide a clear explanation of that decision." Would "because people voted you that way" be clear enough? Who the hell knows, but will Loeffler use some of her immense wealth to pay for the litigation costs for us and everyone else to find out?

Also, it's entirely unclear to me if a platform can actually delete spam under this bill. Is deleting spam "viewpoint-neutral"? Or is it anti-spam? There's an interpretation (and thus, almost certainly expensive litigation) to go through before we find out if sites are protected in deleting spam. Even if deleting spam is considered "viewpoint-neutral" the bill would require sites to explain to every spammer why their content is being deleted, which would be a massive waste of time and resources, such that many sites would simply choose to (a) host all the spam, or (b) stop hosting any user generated content at all, because of all the spam.

What this bill would really do is turn any platform that hosted 3rd party speech into a garbage dump of spam, abuse, porn and harassment. Because the "cost" of removing that "lawful" speech now becomes extremely high. It does seem odd that a Republican Senator would be pushing for a bill that would lead to a lot more porn on the internet in places that formerly had policies against that, but if that's what Loeffler wants... that's what she'll get.

Filed Under: 1st amendment, content moderation, encryption, free speech, kelly loeffler, section 230, viewpoint neutral