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Lawmakers unveil bipartisan proposal to make social media moderation more transparent

Jun 26. 2020
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By The Washington Post · Cat Zakrzewski · NATIONAL, TECHNOLOGY, POLITICS, CONGRESS, MEDIA 

Many Republicans and Democrats agree that social networks' prized legal shield is flawed. A new bill is a sign they could also find common ground to change it. 

Sens. John Thune, R-S.D., the Chair of the Senate Commerce communications subcommittee, and ranking member Brian Schatz, D-Hawaii, introduced legislation Wednesday that aims to make major social media companies more transparent about content moderation on their services. The bill would require companies to remove posts and other activity that the courts determine is illegal within 24 hours. 

The legislation, known as the PACT Act, is one of the more nuanced proposals on Capitol Hill in the contentious debate over Section 230 of the Communications Decency Act, a 1996 law that protects social networks from litigation over the content that people share on their services. President Donald Trump has recently called for the provision to be revoked outright, and he recently signed an executive order that would direct federal regulators to reexamine its scope. 

Schatz said that the rhetoric around Section 230 in Congress has been "stupid and polarized."

"Our approach is a scalpel rather than a jackhammer," he told reporters during a call Wednesday. "In my view the best thing we can do for the Internet, and the law that allowed the Internet to happen, is to modify that law so that it works for another 20 years, rather than pretending it's perfect just as it is." 

Content moderation is now the most divisive tech issue in Washington. 

But the senators are hoping that this bill includes provisions that could appease both sides of the aisle. That's no easy task in an election year, especially one when the companies' decisions about how to handle rhetoric of a president running for reelection is under the microscope. 

"We are pleased with this legislation because we think it can pass," Schatz told reporters on a phone call. "We are pleased with this legislation because we think it is time to lower the temperature on the conversation, and start to go through the regular order and actually make a bill, as opposed to making a stand." 

Republicans have accused the tech companies of going overboard in censoring the speech of the president and other politicians. Meanwhile, Democrats say social media companies aren't doing enough to curtail the spread of disinformation, hate speech, racist rhetoric and other harmful content. 

One area of consensus is that the companies' policies are confusing and unevenly enforced. 

Schatz told reporters that lawmakers frequently hear complaints that the companies act like a "black box" and provide limited information about how they make decisions about the content they're pulling off their services. Under this legislation, the companies would have to create a system that notifies users of moderation decisions within 14 days, and also provides a way for people to appeal those decisions. Smaller companies would be given greater flexibility in responding to the complaints. 

It also would also encourage companies to share best content moderation practices with each other, through a National Institute of Standards and Technology-led framework, similar to those that companies already use to share best cybersecurity practices. 

It's one of many proposals floated in Washington that could change Section 230. 

The other primary bipartisan initiative is the EARN It Act, which would strip companies of legal protections when their users share materials that exploit children. Lawmakers are set to start reviewing the bill Thursday. 

Schatz said there are "significant areas of disagreement" between the EARN It Act and his legislation. He said chief among them is that an industry group would share best content moderation practices under his bill, while the government plays a larger role in the Earn It. 

Republicans have also introduced proposals that have not received buy-in from Democrats. The Justice Department recently unveiled its own proposal for restructuring Section 230. Sen. Josh Hawley, R-Mo., has introduced multiple bills that would change Section 230, largely aiming to hold the platforms accountable for decisions they make that could limit political speech. 

Hawley's office did not respond to a request for comment on whether he would support the PACT Act. 

However, the new bill could appeal to Republicans who have raised similar concerns about political speech. "Anyone who is concerned about bias on these platforms will appreciate that this bill would require platforms to give users the ability to appeal a takedown decision and provide an explanation that is linked to their terms of service," said a Republican Senate aide, who spoke on the condition of anonymity because he was not authorized to speak to reporters about the bill. 

It remains to be seen whether the Trump White House will back the bill. 

Tech companies have vigorously opposed any attempt to overhaul Section 230. 

Netchoice, which lobbies on behalf of companies including Airbnb and Facebook, blasted the bill in the statement. 

"By attaching counterproductive strings to Section 230, this bill would make it harder for online platforms to focus on removing harmful content in an especially turbulent election season," Carl Szabo, vice president and general counsel at NetChoice, said in a statement. "We should enable platforms to remove harmful content, not weigh them down with unnecessary regulations." 

Amy Murphy, the director of federal government affairs at the Internet Association, said she is reviewing the legislation. 

The senators consulted academics and consumer groups when crafting the legislation. 

Danielle Citron, a professor the Boston University School of Law, has long argued that Section 230 should not be a "free pass," but rather contingent on companies engaging in reasonable content moderation practices. She said this legislation is a step in that direction. 

"The bill does not go far enough for me, but it is a good start on the road to conditioning the legal shield on reasonable content moderation practices in the face of illegality causing clear harm," she told The Washington Post. 

Jeff Kosseff, who wrote a book on Section 230 called "The Twenty-Six Words That Created The Internet," said this bill addresses criticisms from both parties of Section 230 to some extent. 

"It's definitely not a huge change to 230 like some of the other proposals are," he said. 

 

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