Democrats Introduce Bill to Suspend Section 230 to Sites With Misinformation

Two Democrats have introduced the Health Misinformation Act. The bill aims to suspend Section 230 protections if they host health misinformation.

The war on the non-problematic section of law, Section 230, is continuing. After Republican’s were rightly ousted from office over the disastrous Trump administration, Democrats took over. Republican’s had a long war on Section 230 because they were demanding the right to reach. None of it really had anything to do with Section 230 to begin with, but that was front and centre for them anyway. The efforts to repeal Section 230, however, ended in failure.

After Democrats took office, they started enacting their efforts to kill Section 230 for entirely different, but equally irrelevant reasons. For them, if social media is going to carry misinformation, then Section 230 needs to be effectively repealed. The spread of misinformation, of course, has nothing to do with Section 230. Section 230 does shield platforms from automatic liability from user generated content, but it doesn’t necessarily block recourse for the publication of false and damaging information. After all, the person posting this content is still liable as far as Section 230 is concerned. So, under a variety of false theories about Section 230, Democrats are charging forward with killing the non-problematic law crucial for the success of the Internet in the US.

One of those swipes at Section 230 was the SAFE TECH Act. Essentially, the bill would effectively repeal Section 230 without technically repealing it. Put it another way, it renders Section 230 useless without actually striking the law itself from the books. Digital rights advocates rightfully blasted the legislation as an existential threat to their very existence. It’s not that any of them are intentionally misleading anyone, but rather, they know full well that the law would break the Internet, forcing them to shut down despite not actually contributing to the problem of misinformation.

More recently, President Joe Biden said that he was “reviewing” Section 230 as well. At issue is how platforms moderate content and tying Section 230 protections to misinformation their users post. The specific details remain unclear on how Biden wants to do from the executive branch, but it is clear that the approach is similar to the problematic SAFE TECH Act.

Now, we are learning of a third swipe at Section 230 from Democrats. Two Democratic lawmakers are introducing the Health Misinformation Act. Reportedly, the bill would strip Section 230 protections for sites that host misinformation (i.e. anti-vaccination propaganda and lies). From TechCrunch:

The Health Misinformation Act, introduced by Senators Amy Klobuchar (D-MN) and Ben Ray Luján (D-NM), would create a new carveout in Section 230 of the Communications Decency Act to hold platforms liable for algorithmically promoted health misinformation and conspiracies. Platforms rely on Section 230 to protect them from legal liability for the vast amount of user-created content they host.

“For far too long, online platforms have not done enough to protect the health of Americans,” Klobuchar said. “These are some of the biggest, richest companies in the world and they must do more to prevent the spread of deadly vaccine misinformation.”

The bill would specifically alter Section 230’s language to revoke liability protections in the case of “health misinformation that is created or developed through the interactive computer service” if that misinformation is amplified through an algorithm. The proposed exception would only kick in during a declared national public health crisis, like the advent of COVID-19, and wouldn’t apply in normal times. The bill would task the Secretary of the Department of Health and Human Services (HHS) with defining health misinformation.

“Features that are built into technology platforms have contributed to the spread of misinformation and disinformation, with social media platforms incentivizing individuals to share content to get likes, comments, and other positive signals of engagement, which rewards engagement rather than accuracy,” the bill reads.

The bill also makes mention of the “disinformation dozen” — just 12 people, including anti-vaccine activist Robert F. Kennedy Jr. and a grab bag of other conspiracy theorists, who account for a massive swath of the anti-vax misinformation ecosystem. Many of the individuals on the list still openly spread their messaging through social media accounts on Twitter, Facebook and other platforms.

You almost get the sense that lawmakers think that big platforms can wave a magic wand and make misinformation magically disappear. That the only reason that they don’t is because they make ad revenue from misinformation. The truth is that rooting out misinformation is far more complicated than just wiping out the really obvious misinformation. What if information posted was from a health official who got something wrong? Does that count as spreading false information? What if someone decided to post something stupid and sarcastic on said platform? What if someone posted a statement with misinformation for the purpose of disputing it? How about posting satire? Tackling these grey areas is going to be annoying in and of itself. Applying it to sites that are as large as Facebook and Twitter and you have a nightmare of a problem.

What’s more is that this legislation has all the hallmarks of implementing a slippery slope in the law. If misinformation is going to be targeted, what else is going to be a target? Online pornography? Political criticism? Violent content? Video games? That’s the problem with laws like this. When you decide that a certain category of content, you quickly run into the hammer and nail problem – once you have a hammer, everything else looks like a nail.

What’s worse is that we don’t have to necessarily rely on theory as to what happens when you start excluding certain kinds of content from Section 230. We already have an example through SESTA/FOSTA. In 2018, lawmakers passed SESTA – a bill that aims to remove Section 230 protections for sites that are host to sex trafficking. On the surface, that doesn’t seem like that big of a deal. The problem is that it gave rise to numerous unintended consequences. A number of dating websites shut down. By 2019, it became clear that the law worsened the situation with not only sex trafficking, but also endangered the lives of those working in the sex industry. Online tools that documented problematic clients were forced to shut down because of the law – leaving sex workers with fewer tools to protect themselves. Lawsuits were filed to have the law overturned because of the damaging effects it had.

If that is just some of the effects cracking down on sex trafficking had through Section 230, there is no telling what kind of damage can be done when it comes to targeting misinformation through Section 230.

As said so many times before, this is not to say laws can’t tackle misinformation. The problem is when a law targets Section 230 to accomplish this. After all, this is an internet-wide broad stroke approach which, as history shows, never ends well. It’s unclear how far this latest attempt to attack Section 230 will be, but it does represent at least the third attempt by Democrats to attack Section 230.

Drew Wilson on Twitter: @icecube85 and Facebook.

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