How a widening political rift over online liability is splitting Washington

The tech industry is turning to its supporters in Washington to defend its long-standing legal immunity for offensive and defamatory online content, in the face of growing attacks from politicians fed up with hate speech, fake news and alleged ideological bias.

Warnings against eroding the 23-year-old immunity shield are popping up in industry-backed studies, newspaper op-eds and statements from figures across the political spectrum — from Oregon Democratic Sen. Ron Wyden to groups backed by the Koch brothers. But the online industry is up against powerful forces: Figures as far apart as Nancy Pelosi and Donald Trump Jr. have chastised the way companies like Facebook, Google and Twitter make use of their safe harbor, and some prominent critics of the legal shield are due to attend a White House summit on social media this week.

What’s at stake is a 26-word provision in the 1996 Communications Decency Act that protects online platforms from liability for content their users post — content that now includes everything from tweets, photos and Yelp restaurant reviews to the hundreds of hours of videos that people upload to Google’s YouTube every minute.

The provision, known as Section 230, has helped Silicon Valley’s giants become some of the wealthiest companies on Earth. But its supporters say it’s also crucial to the online freedoms ordinary Americans enjoy — and that if Congress insists on tinkering with it, the resulting wave of potential lawsuits facing social media platforms, customer review sites, blogs and message boards could bring to a halt the user-driven internet as people have known it for decades.

“Kill Section 230, You Kill the Internet,” columnist Andy Kessler warned last week in The Wall Street Journal, days after an industry-backed study predicted that abolishing the liability shield would wipe out “the best of the internet” — namely, online product reviews. And The New York Times last month published an “op-ed from the future” envisioning the heavily censored online world that loss of the protections would create.

Wyden, who co-wrote Section 230, also advanced the argument in an online “Ask Me Anything” session with Reddit CEO Steve Huffman in early June, despite acknowledging that “a lot of the internet can be an incredibly vile place.” He said he wasn’t defending bad behavior by Facebook, YouTube or Twitter — but added that “it’s the startups and smaller sites that will get hammered if we start suing sites for everything their users post.”

The topic is also an increasingly dominant part of the industry’s private meetings on Capitol Hill, said Carl Szabo, vice president of the right-leaning e-commerce trade group NetChoice, which represents industry heavyweights like Facebook, Google and Twitter.

“It’s easily one of our top priorities,” Szabo said. He said his group’s conversations with lawmakers include “explaining what Section 230 is, besides just a buzzword — its impact on their constituents and their ability to reach potential voters.”

The debate is a new dimension to the tech backlash that has spread across the political spectrum, leaving Silicon Valley with fewer friends in Washington as lawmakers scrutinize how the biggest online companies police their platforms, handle users’ data and box out competitors. Calls for revisiting or revoking Section 230 have become a common theme for politicians fed up with the industry over a host of sometimes-incompatible reasons.

In the latest instance, Senate Judiciary Chairman Lindsey Graham (R-S.C.) told reporters Tuesday he is considering legislation that would require companies to uphold "best business practices" to maintain their liability shield, subject to periodic review by federal regulators. Graham envisions determining those practices by gathering input from Washington and the tech industry. "As long as you keep up to date with what is expected in terms of best business practices, you can't be sued," the lawmaker said.

Graham's musings follow a more concrete proposal that Sen. Josh Hawley (R-Mo.) has already introduced. His bill would take away Section 230's legal protections from large online platforms that cannot demonstrate to federal regulators that they are "politically neutral." That’s in response to accusations by Republicans that companies such as Facebook, Google and Twitter abuse their protections by taking down or downplaying conservative content.

Sen. Ted Cruz (R-Texas) sounded a similar theme during a hearing in April, warning: “If big tech wants to be partisan political speakers, it has that right, but it has no entitlement to a special immunity from liability under Section 230 ... that nobody else enjoys other than big tech."

Another conservative tech critic, Rep. Matt Gaetz (R-Fla.), has floated the idea of repealing Section 230 entirely. He's among the invitees to Thursday's White House summit, alongside Sen. Marsha Blackburn (R-Tenn.) and conservative activists and social media personalities who accuse the companies of stifling their content.

Meanwhile, Democrats like Pelosi often complain about offensive or fake content that the companies refuse to take down — such as an infamous fake video in May that made the House speaker appear drunk. Facebook declined to remove the video, saying it didn’t violate the company’s policies.

In an earlier interview with the tech site Recode, Pelosi accused online companies of failing to live up to the responsibility that goes along with their legal immunity.

“230 is a gift to them,” Pelosi said, adding that “it is not out of the question that that could be removed.”

Washington has already opened the door to carving away exceptions from the liability shield. Last year, President Donald Trump signed a broadly supported bill holding online companies liable for "knowingly" hosting content that enables sex-trafficking — a change that had previously been advocated by the vast majority of state attorneys general, including former California Attorney General Kamala Harris. Lawmakers of both parties have since discussed making other exceptions.

A similar debate is under way in the Europe Union, where Facebook has been fighting to prevent changes to a 2000 e-commerce directive that offers similar immunity for online content. Some EU policymakers are proposing to treat social media companies more like traditional publishers, holding them liable for terrorist propaganda and other dangerous content.

The European shield is somewhat less sweeping than the U.S. version — a fact that NetChoice has tried to seize on as an argument in favor of preserving Section 230. The group released a joint study with tech think tank the Copia Institute concluding that the U.S. legal protections mean more venture funding for American companies than for their counterparts in Europe.

“Big tech is the current punching bag and Section 230 [is] another tool that these politicians are deploying to say more or less, ‘We’re not happy with tech companies right now,’” said Neil Chilson, a senior researcher at the libertarian-leaning Charles Koch Institute and a former chief technologist at the Federal Trade Commission.

Still, lawmakers who want to rein in Section 230 are far from consensus on how exactly to change the law — giving the industry some reason to hope no changes are coming soon.

Hawley’s bill is so far the only legislation introduced in the current Congress that would alter Section 230, and it has faced immediate pushback from business groups, liberals and conservatives alike. They argued that it would not only harm smaller companies but would infringe on users’ constitutional right to free speech. Americans for Prosperity, an advocacy group backed by industrialists Charles and David Koch that spent $2.1 million helping elect Hawley last year, blasted his bill as “toxic” and “misguided” in a statement 11 hours before it was announced.

But efforts to chip away at Section 230 in narrower, less politically charged ways could draw broader interest, as shown in Silicon Valley’s losing battle to thwart the sex-trafficking bill.

Lawmakers have since floated similar carve-outs.

Democratic West Virginia Sen. Joe Manchin, whose state for years has grappled with a rash of opioid overdose deaths, told POLITICO he hopes to sit down with leaders from social media companies "to see if they can rein this thing in without us having to do what we have to do.” But if that doesn’t work, he's exploring legislation that could make companies liable for the sale of the drug on their platforms.

“We’re going to prepare basically to do whatever it takes to stop them from soliciting online from products that shouldn’t be,” he said. Manchin first raised the prospect of altering Section 230 to target opioid sales during a Senate hearing with Facebook and Twitter executives last year.

Cruz, meanwhile, said he's “had a number of conversations" about legislation targeting Section 230 "with both Republican and Democratic senators," adding "I expect those conversations to continue."

Those are exactly the sorts of conversations that tech industry representatives hope to tamp down on as they hold Capitol Hill meetings. And other lawmakers may prove to be allies in that push.

“I think a lot of the risk if it is a silver bullet is it hurts speech," said Silicon Valley Rep. Ro Khanna (D-Calif.), who was one of just 25 members of the House to vote against the sex-trafficking measure. “The reason America thrived on the internet and Europe stagnated is because we have a First Amendment that respects speech.”

Laura Kayali contributed to this report.