Removing Liability Protection For Section 230 In Kids Online Safety Act Will Break The Internet ⋆ JP


Congress wants to break the internet.

Recently, the TikTok ban was signed into law after House leaders stuck H.R. 7521 into the Ukraine-Israel-Taiwan supplemental — with almost no deliberation — to force divestiture of any website or application or else have it removed from hosting services if the President determines it is run by “a person subject to the direction or control of a foreign person or entity” including Russia, China, North Korea or Iran.

To get there, according to the legislation, the application must be “determined by the President to present a significant threat to the national security of the United States”.

It applies to the Chinese-owned TikTok app, but the bill goes further to leave it to the President for all future determinations about who is “subject to the direction or control” of Russia, China, North Korea or Iran. That could include applications that allow users to oppose U.S. intervention in, say, Ukraine, if the President declares opposition to U.S. intervention to Ukraine on social media to be a threat to national security.

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Now, fresh on the heels of the TikTok ban, Congress is also considering legislation, the “Kids Online Safety Act,” S. 1409, that would dramatically erode liability protections that websites currently enjoy under existing law.

For example, in Section 11, civil actions may be brought by states against “any public-facing website, internet application, or mobile application, including a social network site, video sharing service, search engine, or content aggregation service” including perceived “psychological distress” allegedly inflicted upon users including minors.

Actions by every single state in the country against websites and other applications would bring a new level of regulation to the internet never seen before: “In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by the engagement of any person in a practice that violates this Act, the State, as parens patriae, may bring a civil action on behalf of the residents of the State…”

The bill also authorizes guidances and other regulations by the Federal Trade Commission against all websites and applications subject to the bill that would require content filtration on behalf of minors and other highly expensive mechanisms that could harm small businesses from functioning on the internet at all and otherwise would raise serious First Amendment concerns because it would fundamentally alter the content being published on these websites and applications.

All of these provisions would directly undermine core protections of websites and other applications that were enacted by Congress in 1996, including Section 230 of the Communications Decency Act.

47 U.S.C. Section 230(c)(1) forms part the internet’s liability shield, stating, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Subsections (c)(2)(a) and (c­)(2)(b) form the other part of that protection, stating, “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected any action taken to enable or make available to information content providers or others the technical means to restrict access to material described…”

These simultaneously grant a broad liability exemption for websites and other interactive computer services from whatever users happen to post on their websites, and grants the companies power to remove items at their discretion they find objectionable. The delicate balance this creates shields websites and other applications from lawsuits, allows for user networks to exist and otherwise protects the First Amendment rights of those websites by giving them the final say over what goes on their platforms.

Removing the liability protections, as the Kids Online Safety Act envisions by creating clear exceptions to section 230, would subject almost every website and interactive computer service to liability from the millions of users on these websites.

It would effectively destroy the internet, since nobody would be willing to nor could they afford to assume the risk of hosting somebody else’s material that might be defamatory or resulted in “psychological distress” for unknown persons, or else be subject to potentially 50 different lawsuits from state Attorneys General. Where once there was liability protection for websites and apps, suddenly there will be a liability nightmare that Congress should seriously reconsider.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

Cross-posted with The Daily Torch


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