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Section 230 of the Communications Decency Act helped create the modern Internet by allowing companies like Facebook (FB), Twitter (TWTR), and Google (GOOG) to operate without being held liable for content posted on their platform by third parties.
But what if that changed? Not all at once as some like President Joe Biden and former President Donald Trump have suggested – but one brick at a time.
Going at the law piece by piece is what many tech critics want, and some think health misinformation is the way to start.
That’s the idea behind a recent bill from Sen. Amy Klobuchar (D., Minn.), co-sponsored with Sen. Ben Ray Luján (D., N.M.) – that would create an exception to Section 230 when it comes to platforms and algorithms that promote misinformation related to an existing public health emergency.
In a statement to Yahoo Finance, Klobuchar said that “for far too long, online platforms have not done enough to protect the health and safety of Americans.” The recent testimony from Facebook whistleblower Frances Haugen has led to “growing momentum to do something to rein in big tech, including targeted reforms to Section 230” such as her bill, she added.
The issue could be even more pointed in the coming months with a new social media network in the works from Trump (who some claim has trafficked in health misinformation) set to launch and use the protections from Section 230.
Klobuchar may have some support from the Biden administration.
In a new interview for Yahoo Finance's All Markets Summit, U.S. Surgeon General Vivek Murthy said he wants aggressive action against big tech: “Given the pernicious effects of health misinformation, we should keep all options on the table as we look to how to address this," he said.
'Attempts to define health misinformation’
What constitutes health misinformation under the Klobuchar and Luján bill would be up to the U.S. Department of Health and Human Services, which would be tasked with providing guidance.
The idea has its critics. Jeff Kosseff, professor of cybersecurity law at the U.S. Naval Academy and author of a book on Section 230 titled “The Twenty-Six Words That Created the Internet,” has argued that efforts to outlaw certain social media content could face an uphill battle.
He says the idea is “very well-intentioned,” but “it attempts to define health misinformation by allowing a single government official to issue guidance and that is what really scares me; that gets a little too much like the ministry of truth for my taste.”
Kosseff notes that what is called misinformation today could swing from administration to administration. Another challenge would be how the provisions would be enforced given that much false speech is protected by the First Amendment.
Conservatives, of course, have often seen efforts to curb health misinformation as one with malicious intent.
A letter this summer from Sen. Josh Hawley (R., Mo.) to Facebook CEO Mark Zuckerberg slammed Murthy and the tech giant for an advisory that warned about health misinformation and offered guidance for “strengthen the monitoring of misinformation” and “impose clear consequences for accounts that repeatedly violate platform policies.”
The Hawley letter asked whether this meant “social media platforms like Facebook have functionally become arms of the federal government.”
The response from many Democrats is that voluntary policies aren’t enough to stop the flood of health misinformation we’ve seen over the last year.
Klobuchar and Luján have also sent a letter to Twitter CEO Jack Dorsey and Zuckerberg demanding they take action against disinformation on their platforms, and cited a recent study which had volunteers anonymously report misinformation and found that fewer than 1 in 20 posts were actually dealt with.
‘Step up and take some responsibility’
The ongoing release of the “Facebook Files,” showing the pernicious reach of misinformation into the 2020 U.S. election, and violence in India, among other incident, is likely to increase pressure on Section 230 to be removed or at least carved up in some form.
The law has had a carveout since 2018 when Section 230 was amended to open up websites to liability for content promoting sex-trafficking victims, but many say that the move has led to unintended consequences that put sex workers in new danger.
In addition to Klobuchar’s bill are a host of proposals on Congress’s docket for reforming or revoking Section 230 – from cases related to civil rights violations, to advertising, to perceived censorship of conservative voices online.
Kosseff says the core challenge to any new steps is that Congress is divided not only on the best action, but even on defining what the problem is. He says he often meets with lawmakers to discuss Section 203 and when it comes to health misinformation, “there's about half of Congress who would disagree with that even being a problem, and they would say the problem is that the platforms already voluntarily do too much blocking of content.”
Whether the Biden administration tries to push lawmakers to pass some sort of action in the coming months is unclear, but Murthy says we’ve “got an extraordinary problem in our hands,” and it’s one that ”requires technology companies to step up and take some responsibility.”
Ben Werschkul is a writer and producer for Yahoo Finance in Washington, DC.