Section 230 & Content Moderation | Brunswick

Section 230 & Content Moderation

Biden-Harris Administration’s Next Steps on Tech

The issue of content moderation by tech platforms has arguably been the highest profile tech policy issue of the last four years. Tech companies are grappling with finding a balance between keeping their services safe from misinformation, hate speech, or violent content, and being accused of overreaching and censoring certain political opinions.

In this context, both then-President Trump and Democratic nominee Joe Biden called in 2020 for a repeal of Section 230 of the Communications Decency Act, the legislative statute that governs the protections afforded to tech companies from the content posted by users on their sites. Section 230 is hailed as one of the most important laws in shaping what the internet is today—without it, user-generated content could never have developed in the way it has. It is often described as the “sword and the shield” of the law - the sword lets tech companies moderate content as they see fit, while the shield protects them from liability for content posted by their users. But its critics argue today that it is no longer appropriate to govern today’s internet and that it affords tech companies too much leeway in making content moderation decisions.

For years, conservative activists and politicians have claimed that Silicon Valley’s content moderation policies disproportionately limit conservative speech. While there has been no data supporting such claims of bias, recent content moderation decisions towards President Trump have reinforced that belief in conservative policy and political circles.

Among Democrats and progressives on the other hand, tech platforms are criticized for not doing enough to address misinformation, promoting fake news through their algorithms, and even threatening our democratic foundations.

So, while criticism of Section 230 is widely shared by both sides of the political spectrum, Republicans and Democrats come at it from very different perspectives. Potential areas for bipartisan alignment around content moderation may include the following:

  • Increased transparency requirements for tech companies’ moderation decisions. While this would not resolve the debate of what type of content should be taken down, it would help the public and regulators understand the motivations behind those decisions and increase trust in them.
  • Specific carve-outs from the blanket liability shield afforded by Section 230 for particularly harmful content. One such example is the bipartisan EARN IT Act, introduced in March 2020 by Sens. Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) to strengthen the requirements for tech companies to tackle the spread of child sexual abuse material.

Since his declaration in January 2020 that “Section 230 should be revoked immediately,” President Biden has not advanced any specific proposals to address the issue.

SAFE TECH Act. In the Senate, senior Democrats are also advocating for changes to Section 230, introducing the SAFE TECH Act in early February 2021. The bill lays out recommendations to make tech companies liable for enabling cyber-stalking, targeted harassment, and discrimination on their platforms. The law focuses on reducing immunity for content that platforms profit from through advertising and removes the broad shield provided by the current legislation in case of lawsuits. This bill indicates the tone of Democrats’ efforts to reform Section 230—leaving all mentions of censorship or conservative bias behind and focusing on civil rights instead.

KEY PEOPLE TO WATCH:

Senator Amy Klobuchar (D-MN) has become a leading voice in the Democratic party across a range of technology policy issues, including content moderation. She is coauthor of the SAFE TECH Act with Senator Mark Warner (D-VA) and Senator Mazie Hirono (D-HI). This legislation offers ideas for reforming Section 230, including honing in on advertising and other paid services.

FCC Commissioner Nathan Simington (R) was appointed by former President Trump after serving as an advisor to the National Telecommunications and Information Administration (NTIA). He made notable contributions to the NTIA’s 2020 petition to the FCC to reinterpret Section 230.