As administrations have changed in Washington, there has been a push to enact or change legislation in a variety of areas. However, most of the initiatives lack the zeal found in the bipartisan interest in “curb on social mediaand pursue reforms to Section 230 of the Communications Decency Act (CDA). As we’ve documented, the parade of bills and approaches to narrowing the scope of immunities granted to “interactive computer services” under section 230 of the CDA has come from both sides of the aisle (although the justifications for such reform differ according to party lines). The latest came on February 5, 2021, when Senators Warner, Hirono and Klobuchar announced THE SAFE TECH Act. The SAFE TECH Act would limit the immunity of the CDA by enacting “targeted exceptions” to the law’s broad grant of immunity.
As arranged invoice summarykey provisions of the SAFE TECH Act would limit CDA immunity for:
- Actions relating to advertising or other paid content
- Actions to enforce civil rights laws, cyberstalking and harassment laws, antitrust laws, and human rights violations (e.g., Alien Tort Claims Act), as well as wrongful death lawsuits
- Actions seeking injunctive relief where improper use of a provider’s service may cause irreparable harm
As we have commented above, critics of the CDA raise serious concerns. However, despite what are presumably the best of intentions, any legislative effort to purge harmful content from the web is not going to be easy. The risk is clear: every new cut brings with it the potential for unintended consequences or loopholes to exploit. The SAFE TECH Act is no exception. A revised proposal raises many questions, leaves unresolved some of the more troubling issues that have arisen under the CDA over the years, and presents challenges for legitimate businesses that rely on the CDA to escape frivolous and costly litigation.
Given the other pressing issues on the congressional agenda, CDA reform is unlikely to be adopted anytime soon; The SAFE TECH Act is just the latest CDA reform proposal that seeks to add to the larger debate about how Congress could reach a consensus on regulating Internet platforms without limiting online innovation. With the start of a new Congress, more invoices are expected to be introduced (or reintroduced) soon. However, given the bipartisan undercurrent of doing something about the excesses of the web, some changes are likely afoot for section 230 of the CDA. We will follow the debate closely.