New Senate Bill is Two Bad Ideas Merged into One

WASHINGTON, D.C. –  If you’ve been following the various proposed measures targeting Section 230 of the Communications Decency Act that have come out of the nation’s capital in recent months, the text of the “Online Content Policy Modernization Act,” (“OCMP Act”) a ‘new’ bill recently introduced by Senator Lindsey Graham (R-SC), may strike you as quite familiar.

If so, you’re not imagining things, because Graham’s legislation essentially amounts to a merger of the “Copyright Alternative in Small-Claims Enforcement Act” (“CASE Act”) proposed last year and the “Online Freedom and Viewpoint Diversity Act” introduced by Senators Graham, Roger Wicker (R-Miss.) and Marsha Blackburn (R-Tenn.) last month.

While the portion of the bill currently getting attention in the media is Title II of the bill, the so-called “Good Samaritan” blocking provision, that section amounts to only two and a quarter pages of the 64-page OCMP Act.

(Contributing to the sense that Title II of the bill may have been literally tacked on to the CASE Act is the fact that the legislation’s severability clause – the portion which specifies that if any provision of the bill is held to be unconstitutional, the rest of the bill shall remain in force – comes before Title II in the text.)

Reached for comment on the OCMP, attorney Larry Walters (who is part of the legal team leading the charge against FOSTA, another piece of legislation which undermined the protections offered by Section 230) told YNOT the bill “mixes two bad ideas that are damaging to online freedom and likely unconstitutional.”

“The 230 change will dramatically reduce the scope of Good Samaritan immunity for removal of content unless it specifically falls into one of the 9 listed categories,” Walters observed. “Currently, platforms can safely remove content which is ‘otherwise objectionable’ which grants them wide latitude in deciding what content is acceptable for publication. That latitude would be removed under this bill.”

Walters added that if adopted, these changes “could result in online platforms not removing irrelevant or unwanted content due to concerns over legal liability.”

“The selective removal of Section 230 immunity for moderation of objectionable material creates First Amendment concerns similar to those we raised in Woodhull’s challenge to FOSTA’s selective removal of Section 230 immunity for prostitution-related speech,” Walters said.

As I’ve noted repeatedly over recent months, there’s now a litany of proposals targeting Section 230 under consideration by the federal government. To offer a list that’s from comprehensive, there’s President Trump’s recent executive order on social media,  the ”EARN IT Act”, the “Limiting Section 230 Immunity to Good Samaritans Act,” recommendations published by the DOJ in June, the “Stop the Censorship Act,” a policy paper written by Senator Mark Warner (D-VA), the Platform Accountability and Consumer Transparency Act and the “Behavioral Advertising Decisions Are Downgrading Services (BAD ADS) Act.”

It’s unclear which, if any, of these proposals will advance beyond the idea stage (Trump’s executive order mostly tasks the FCC and various other agencies with proposing regulations while proffering none on its own), but with this level of smoke in the air, it seems likely there’s some actual legislative fire to come.

The good news, such as it is, is that should any of these bills, executive orders or new regulations come to pass, you can also safely bet they will be challenged strenuously in court – and if experts like Walters are correct about their suspect constitutionality, these proposals may face a decidedly uphill fight, once the battlefield becomes the court of law.

Addendum: Between the time I wrote the text above and the time it was published, Senators Joe Manchin (D-WV) and John Cornyn (R-TX) introduced the “See Something, Say Something Online Act” (“SSSSA”) — yet another bill targeting Section 230.

Unlike Trump’s executive order and the various bills which allege there’s a need for legislation which mandates political neutrality on social media sites, the SSSSA is focused on requiring sites and platforms to report “suspicious transmissions in order to assist in criminal investigations and counterintelligence activities relating to international terrorism.”

“When Section 230 was written into law in 1996, the Internet was completely different,” Manchin said in a statement issued Tuesday about the bill. “Today, nearly all of us carry the Internet in our pocket, using our phones to call cabs, buy groceries, and message friends and family across town and across the globe, but the same technology that has made us more connected has also made it easier to conduct illegal activity online. Each year, authorities seize enough fentanyl to kill every American four times over, much of it ordered over the Internet and sent by mail from China. As the Internet rapidly changed, we failed to keep up. Now we must amend Section 230 to reflect the way the Internet impacts our lives today – both good and bad. That’s why Senator Cornyn and I are introducing the bipartisan legislation that would require companies to say something when they see something illegal online. This commonsense approach would create a clear mechanism for reporting criminal activity online, requiring companies to take reasonable steps to report unlawful activity or be held liable for that failure. It is past time we held these sites accountable.”

“High-level drug offenses, violent crimes like murder, and even acts of terrorism are documented online, and it’s past time that technology platforms play a role in standing up for the victims of these types of crimes by saying something when they see something,” added Cornyn. “By requiring technology platforms to file reports when they become aware that a major crime has been committed, this legislation keeps platforms accountable and helps authorities deliver justice.”

While likely to be less controversial than some of the other recent proposals regarding Section 230, the SSSSA is still part of the broader trend of blaming the internet’s many ills on Section 230 and seeking to address those ills through legislation which further narrow the scope of the safe harbor. YNOT will continue to track the progress of this bill in the weeks ahead, along with other proposals directed at Section 230 currently under consideration by the federal government.

Lightbulb photo by Pixabay from Pexels