Big Tech and Lawmakers Struggle with Section 230

At a Senate Judiciary Committee hearing on January 31, five Big Tech executives were brought face-to-face with grieving parents holding up pictures of their children who had died. The message was clear. The mothers and fathers put responsibility for their children’s deaths on the executives, all leaders of some of the most powerful social media platforms in the world.

The executives included Mark Zuckerberg of Meta (Facebook), Evan Spiegel of Snap Inc., Jason Citron of Citron, Linda Yaccarino of X (Twitter), and Shou Chew of TikTok. They were summoned to testify on their role in the prevalence of child sexual abuse material (CSAM) online, as well as other safety issues, including cyberbullying, drug sales, and the effects Internet use has on mental health.

The senators were heated in their interactions. At one point, in a scene that has aired repeatedly on news broadcasts since it happened, Sen. Josh Hawley (R-Mo.) pushed for Zuckerberg to apologize to the parents. 

“Your job is to be responsible for what your company has done. You have made billions of dollars on the people sitting behind you here,” Hawley said. “You’ve done nothing to help them, you’ve done nothing to compensate them, and you’ve done nothing to put it right. You could do so here today, and you should.”

Zuckerberg stood up and spoke to the parents. 

“I’m sorry for everything you have all been through,” he said. “No one should have to go through the things that your families have suffered, and this is why we invested so much and are going to continue doing industry-leading efforts to make sure that no one has to go through the types of things that your families had to suffer.” 

Revisiting the Framework of Section 230

Blaming Big Tech for harming children using the Internet is not new. Dozens of lawsuits have been filed against the companies. However, the companies have been protected against liability because of a particular law known as Section 230.

Section 230, considered by many to be an anachronistic law, sits within the Communications Decency Act and was signed by President Clinton in 1996. The aim was for it to support the development of the Internet, which was still in its infancy stage. 

Section 230  gave the Internet users, not the tech companies that owned the different sites or platforms, the responsibility for the information posted. 

The law still stands thirty years later, as the Internet grows more powerful with new gadgets and platforms popping up on any given day.

At the hearing, Sen. Dick Durbin (D-IL), the chairman of the committee, said it is time for Congress to “look in the mirror” and share blame for not succeeding at changing Section 230 yet and allowing social media companies, “the most profitable industry in the history of capitalism,” to operate “without fear of liability for unsafe practices.”

But Durbin also stressed that work has already been done within the committee, including moving forward on several bills directed at social platforms and Internet safety.

Among the bills featured during the hearing were the EARN IT Act, which would roll back the liability protection found in Section 230 when platforms facilitate content that violates criminal laws on child sexual exploitation; the SHIELD Act, which would allow criminal prosecution of people who share others’ private images online without consent; the STOP CSAM Act which gives child sexual exploitation victims the right to sue online platforms, and the Kids Online Safety Act (KOSA) which would require online services like video game sites and messaging apps to take “reasonable measures” to prevent harm, including the services to turn on the highest privacy and safety settings including by default for users under 18.

Support by the tech executives for the new measures was extremely limited, with only Yaccarino, the CEO of X, and Spiegel, the head of Snap Inc., giving confirmation they were behind a few of the bills (Yaccarino said she would support the  STOP CSAM Act, the SHIELD Act, and the Kids Online Safety Act and Spiegel giving support for the Kids Online Safety Act).

The Supreme Court’s Recent Look at Section 230 

To further understand the difficulty of revising Section 230, one needs to only go back to May of 2023 when the Supreme Court took on twin lawsuits, Reynaldo Gonzalez v Google and Twitter v Taamneh.

Both cases centered on families whose loved ones were killed by terrorists and hinged on the fact the victims were killed by individuals known to post information connected to attacks on specific social media platforms. 

The plaintiffs alleged the companies were able to bring viewers to particular videos by creating algorithms on their platforms. The videos were tied to terrorists, and while the plaintiffs claimed the companies violated the federal Anti-Terrorism Act, the defendants used Section 230, calling for their right to immunity to any terrorist involvement and stressing they were not responsible for what was posted on their platforms.  

The justices unanimously decided in favor of the social media companies. According to the decision, written by Supreme Court Justice Clarence Thomas, the tech companies did fail to remove users and content related to ISIS. However, when it came to intentionally aiding the attacks, the defendants did not provide substantial help to terrorists to be found liable. According to Thomas, they did not “pervasively and systemically’’ assist ISIS.

Moving Forward with Section 230

At the end of the January 31 hearing, Sen. Durbin stressed he wants to see a full vote by the Senate on the proposed bills already pushed by his committee to change the liability in Section 230. Durbin said he believed, “The moment of reckoning is when we call a vote on these measures, and it is time to do that.”

Unfortunately for Durbin, six days after his statement, Sen. Ron Wyden (D-Oregon) quelched any quick vote by the Senate. Instead, Wyden made it clear that the road ahead is rocky regarding revamping Section 230. 

Wyden is one of the original authors of Section 230 and has been a vocal opponent of efforts to revise it. On Feb. 6, Wyden moved to object to a request made by Josh Hawley to pass by unanimous consent in the Senate the STOP CSAM Act. The act, sponsored by Hawley and Durbin, was one of the bills highlighted at the Jan. 31 hearing.

Wyden objected because “the bill would make it easier to punish sites that use encryption to secure private conversations and personal devices.”

Hawley disagreed. “The text that passed unanimously out of the Senate Judiciary Committee explicitly exempts encryption technology,” he said.

Hawley also called Section 230 “a sweetheart deal.” 

“Until victims can get into court and have the rights and dignity of every other American challenging any other company this will not change,” Hawley said. “Congress created this problem. Congress created it by giving the most powerful companies in the world a sweetheart deal they still have to this day.”