Social Media Platforms Under Attack in the Senate

Mobile Phone Icons of Social MediaOn June 7, 2019, the United States Court of Appeals for the District of Columbia Circuit held that §230 of the Communications Decency Act (“CDA”), 47 U.S.C. §230 (c)(1) provided immunity from suit to Google, Microsoft and Yahoo! when they are sued for re-publishing content on their websites which is provided by a third-party. Marshall’s Locksmith Service Inc. v. Google, LLC, 2019 U.S. App. LEXIS 17123, No. 18-7018 (D.C. Cir. June 7, 2019). Less than two weeks later, U.S. Senator Josh Hawley (R-MO) introduced legislation – the “Ending Support for Internet Censorship Act” – to remove the §230 immunity that protects companies such as Facebook, Twitter, Google, and the like unless such companies prove to the Federal Trade Commission (“FTC”) that their content moderation is politically neutral.

Section 230 of the CDA provides as follows:

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.

If Senator Hawley’s bill is ultimately enacted, it would remove the immunity protection of §230 of the CDA for providers of interactive computer services with more than 30,000,000 active monthly users in the United States, 300 million active monthly users worldwide or global annual revenue exceeding $500 million unless they could prove to the FTC every two years “by clean and convincing evidence that the provider does not . . . moderate information provided by other information content providers in a politically biased way.”

Such a law, if passed, could have far-reaching effects on social media websites. For example, websites may end certain services they offer because of the costs associated with policing content provided by third parties. Websites which are free now may have to charge fees because, without the §230 immunity, lawsuits against websites will likely increase. In addition, some platforms may have to shut down because of the costs they will incur to defend claims for which these sites previously enjoyed immunity.

Whether this new bill gains traction is anyone’s guess, but it begs the question of whether a government agency (the FTC) should be determining what is or is not politically neutral content and how Congress can pass such a law in the face of the First Amendment.

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            For any questions relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.