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Senate Republicans want to make it easier to sue tech companies for bias

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A new bill would institute a stricter ‘good faith’ requirement

Photo by Leigh Vogel for The Verge

On Wednesday, a group of Senate Republicans introduced a new proposal to limit the immunity granted by Section 230 of the Communications Decency Act, setting the stage for a major fight over how companies like Facebook and YouTube moderate their platforms.

Called the Limiting Section 230 Immunity to Good Samaritans Act, the bill would require companies to undertake a “duty of good faith” in order to receive the protections of Section 230, instituting significant penalties for companies who do not uphold that duty. The result would be a major new avenue for users to sue platforms for improper moderation practices.

According to Axios, the requirement would only apply to services with more than 30 million US monthly users (or 300 million monthly global users) and more than $1.5 billion in global revenue.

Introduced by longtime tech critic Sen. Josh Hawley (R-MO), the bill is co-sponsored by Sens. Rubio (R-FL), Braun (R-IN) and Cotton (R-AK), suggesting significant support within the Republican caucus.

In a statement, Sen. Hawley framed the bill as a response to concerns of anti-conservative bias. “For too long, Big Tech companies like Twitter, Google and Facebook have used their power to silence political speech from conservatives without any recourse for users,” the statement reads. “Congress should act to ensure bad actors are not given a free pass to censor and silence their opponents.”

Section 230 already includes a good faith requirement, although it is vague and has been interpreted broadly by the courts. As written, the law grants platforms immunity for “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.”

This provision allows platforms like Facebook and YouTube to remove content that violates their community guidelines without fear of litigation, while leaving the door open for lawsuits if content is removed in an arbitrary or belligerent manner. In practice, the “good faith” provision is broad enough that such lawsuits are rarely filed.

Hawley’s new bill would narrow that provision, adding specific rules for companies who receive that “good faith” immunity. Under the new provisions, companies could lose the good faith provision if they were found to be enforcing their terms of service in a discriminatory way, or otherwise failing to uphold the terms. Violating the duty of good faith would also be treated as worthy of damages in itself, entitling plaintiffs to $5,000 for each affected user, along with attorney’s fees.

The result would be a new line of attack for lawsuits alleging anti-conservative bias in moderation. Those lawsuits have become common in recent years — with plaintiffs including Laura Loomer, Charles Johnson and Prager University — but none have been able to overcome the broad immunity offered by Section 230. Under this bill, those same lawsuits would have a much better chance of success.

Unlike previous proposals, the bill doesn’t require a federal regulator to determine which platforms are worthy of 230 protections, which may result in stronger support from conservatives. A previous proposal from Sen. Hawley would have tasked the Federal Trade Commission with certifying platforms as politically neutral, which generated significant objectiosn from small-government conservatives. More recently, an executive order promulgated by President Trump gave the Federal Communications Commission a central role in regulating platform immunity, although the legal force of the order is unclear.

The bill is congressional Republicans most plausible proposal yet for peeling back the protections of 230, a goal that has gained broad support across the conservative movement. According to a Wall Street Journal report, the Department of Justice is working on its own guidelines on platform immunity, which will emphasize that Section 230 does not immunize platforms that facilitate federal crimes, including terrorism and child exploitation. The document will also call on Congress to limit platform immunity for the arbitrary removal of content, a call that could plausibly be met by today’s bill.