Internet giants must stay unbiased to keep their biggest legal shield, senator proposes

On Wednesday, Sen. Josh Hawley (R-MO is expected to introduce legislation that would heavily modify section 230 of the Communications Decency Act, adding new restrictions to the broad immunity currently enjoyed by platform companies. Under Hawley’s “Ending Support for Internet Censorship Act,” companies could be stripped of that immunity if they exhibit political bias, or moderate in a way that disadvantages a certain political candidate or viewpoint.

“With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” said Sen. Hawley. “Unfortunately, and unsurprisingly, big tech has failed to hold up its end of the bargain.”

One of the key legal protections of the modern internet, Section 230 ensures that platforms can’t be sued over content posted by their users, provided they make a good faith effort to remove content that violates the law. In the past few months, lawmakers have threatened companies like Facebook and Twitter with modifications to the law if the platforms don’t behave in a more responsible and neutral way. The criticism has been flung from members on both sides of the aisle, including the likes of Hawley, Sen. Ted Cruz (R-TX and even the Speaker of the House Nancy Pelosi (D-CA but Hawley’s bill is the first proposed legislation to tackle the issue.

“There’s a growing list of evidence that shows big tech companies making editorial decisions to censor viewpoints they disagree with,” Hawley said in a statement. “Even worse, the entire process is shrouded in secrecy because these companies refuse to make their protocols public.”

Hawley’s bill would task the Federal Trade Commission with certifying that tech companies are approaching moderation in a neutral way, a requirement for any company with over 30 million monthly active users in the US, 300 million monthly active users globally, or $500 million in global revenue. Certification would require a supermajority vote, including at least one minority member, and would occur every two years. If a company over that threshold could not be certified, it would lose 230 protections and be subject to intermediary liability litigation.

Based on available financial disclosures, Facebook, YouTube, and Twitter would all be subject to the new restrictions. The Internet Association (which counts each company as a member described the legislation as misguided and destructive. “CDA 230 is the law that allows online companies to moderate and remove content that no reasonable person wants online — including content that could have a ‘political viewpoint,” the Association said in a statement. “This bill forces platforms to make an impossible choice: either host reprehensible, but First Amendment protected speech, or lose legal protections that allow them to moderate illegal content like human trafficking and violent extremism. That shouldn’t be a tradeoff.”

But for Hawley, the proposal is simply a necessary measure to rein in an industry that has grown too powerful. “This legislation simply states that if the tech giants want to keep their government-granted immunity, they must bring transparency and accountability to their editorial processes and prove that they don’t discriminate,” Hawley said.