Lawmakers Want 230 Revisions, Can't Agree on How at Big Tech Hearing

Numerous House Commerce Committee members repeated calls for bipartisan action to revise Communications Decency Act Section 230 during a Wednesday Communications Subcommittee hearing, but remain far apart on the details. The proposals “aren’t identical,” but the process could lead to “bipartisan work,” said committee Chairman Frank Pallone, D-N.J. “Republicans and Democrats don’t agree on this issue,” said Rep. Dan Crenshaw, R-Texas.

Most Communications Republicans focused during the hearing on tech censorship of conservatives and promoted proposed legislation that would remove Section 230 liability protection from companies when “Big Tech companies act as big stewards” of speech, as Communications ranking member Bob Latta, R-Ohio, put it. Many were highly critical of Democratic proposed legislation that would take aim at the social media algorithms that disseminate information. That “is just more censorship,” said Commerce ranking member Cathy McMorris Rodgers, R-Wash. The Democratic bill uses “the tactics of the Soviet Union,” said Rep. Jeff Duncan, R-S.C., who also read aloud from George Orwell's 1984 during his remarks.

“As it stands, neither side agrees on the core problem with the current practices,” said Jeffrey Westling, American Action Forum director-technology and innovation policy: “The hearing today just underscores that divide, and while avenues potentially exist for some bipartisan reforms, legislators face an uphill battle getting members to agree on specific proposals."

Facebook got renewed fire from Communications members in both parties. Pallone and other legislators repeatedly criticized Facebook’s co-founder, Meta CEO Mark Zuckerberg, for not being truthful with Congress. The hearing featured two former employees of the company -- whistleblower Frances Haugen and Kara Frederick, now a Heritage Foundation research fellow. “Facebook has hidden from you ways to make platforms safer,” Haugen said. Frederick cited “an increasing symbiosis” between the government and Big Tech, saying Facebook and other companies were censoring right-leaning posts. “We can not let tech totalitarians shape a digital world where independent thinkers are second-class citizens," she said.

Haugen said Meta could change Facebook's algorithm to introduce more “friction” to the sharing of posts outside a user's friend group to reduce misinformation without removing content. Frederick said Congress should regulate Big Tech using a “First Amendment standard.”

“We are a platform for free expression and every day have to make difficult decisions on the balance between giving people voice and limiting harmful content,” emailed a Meta spokesperson. “It is no surprise Republicans and Democrats often disagree with our decisions -- but they also disagree with each other. What we need is a set of updated rules for the internet set by Congress that companies should follow.” The spokesperson said Meta has been seeking such rules for three years. Meta released a report on the same day as the hearing focused on networks it took down globally this year (see 2112010050).

Free Press General Counsel Matt Wood told the committee that altering Section 230 “risks chilling free expression,” but legislators on both sides of the aisle said drastic action is needed. “To be clear, Section 230 is critically important to a vibrant and free internet, but I agree the courts have interpreted it too broadly,” Pallone said. “Given the dangerous state of affairs, I’m more open to the [altering] 230 camp than I used to be,” said Rep. Adam Kinzinger, R-Ill. Tech companies “welcome” the bipartisan divide and complaints about Congress’s approach to changing 230, Doyle said.

Lawmakers also discussed social media platform TikTok during the hearing, raising concerns about its connections to the Chinese government. Haugen said TikTok is “designed to be censored” and Frederick said more 9- to 11-year-olds use the platform than other social media. Rep. Billy Long, R-Mo., said he's paying “close attention” to TikTok.

Removing Section 230's liability protections is the only way large tech companies will change their behavior, said Color of Change President Rashad Robinson, another witness. Robinson conceded doing so would lead to increased litigation, but said the existing system throws protective infrastructure like juries and regulators “out the window.” Witness and victims rights lawyer Carrie Goldberg told the committee Section 230 prevents her from suing tech companies on behalf of abuse victims.

Rep. Yvette Clarke, D-N.Y., and other lawmakers also noted proposed legislation that would target tech companies on civil rights grounds, related to targeted advertising. “Companies that don’t hire black people can’t be trusted to craft policies that protect communities,” said Robinson.

The hearing examined four Section 230-focused bills: the Protecting Americans from Dangerous Algorithms Act (HR-2154), Civil Rights Modernization Act (HR-3184), Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act (HR-3421) and Justice Against Malicious Algorithms Act (HR-5596).

The Senate Commerce Committee plans a pair of hearings next week focused on social media platforms’ impact on children and legislation aimed at addressing those companies’ use of algorithms to manipulate user experiences. Instagram head Adam Mosseri will testify at a Dec. 8 Consumer Protection Subcommittee panel on social media impacts on kids. The hearing will “address what Instagram knows about its impacts on young users, its commitments to reform, and potential legislative solutions,” Commerce said Wednesday. It will begin at 2:30 p.m. in 253 Russell.

Free Press co-CEO Jessica Gonzalez is among those set to testify at a Dec. 9 Communications Subcommittee hearing on “legislative solutions that address the dangers of online platforms’ use of technology to manipulate user experiences,” the committee said Thursday. Massachusetts Institute of Technology marketing professor Dean Eckles, Atlantic Council Democracy & Tech Initiative Director Rose Jackson and Claremont Institute American Mind Executive Editor James Poulos will also testify. The hearing will begin at 10 a.m., also in 253 Russell.

Daniel Lyons, American Enterprise Institute non-resident senior fellow, and UCLA law professor Eugene Volokh echoed other witnesses’ misgivings about proposed Section 230 legislation Wednesday night. “We tinker with this regime at our peril,” Lyons said. “Section 230 is woven into the fabric of online society, making it difficult to predict how a change to the statute would ripple throughout the internet ecosystem.” Increased “content moderation costs affect all players, incumbents are better positioned to absorb those costs and keep going,” he said. “This committee has focused significant attention on Facebook’s activity” and “it would be ironic if its actions inadvertently insulated Facebook from competition.”

Volokh in part criticized HR-5596, which would remove Section 230 immunity when a platform “knowingly or recklessly uses an algorithm or other technology to recommend content that materially contributes to physical or severe emotional injury.” The measure “strikes me as a bad idea” because it and would benefit professionally-produced content that already has external marketing at the expense of user-generated submissions, he said.