Senators Warner, Hirono, And Klobuchar Demand The End Of The Internet Economy

from the daft-drafting dept

Just because Senators Warner, Hirono, and Klobuchar are apparently oblivious to how their SAFE TECH bill would destroy the Internet doesn't mean everyone else should ignore how it does. These are Senators drafting legislation, and they should understand the effect the words they employ will have.

Mike has already summarized much of the awfulness they propose, and why it is so awful, but it's worth taking a closer look at some of the individually odious provisions. This post focuses in particular on how their bill obliterates the entire Internet economy.

In sum, and without exaggeration: this bill would require every Internet service be a self-funded, charitable venture always offered for free.

The offending language is here:

(iii) by inserting before the period at the end [subsection (c)(1)] the following: ‘‘, unless the provider or user has accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech…’’

Subsection (c)(1), for reference, is the "twenty-six words that created the Internet." It's the clause that does nearly all the heavy lifting to give Section 230 its meaning and value. And what these Senators propose is that any value that it could still somehow manage to provide, after all the other changes they propose turn it into swiss cheese, now be conditional. And that condition: that the site never, ever make any money.

It's the first part of that bill text that is most absurd, but even the second part is plenty destructive too. To the extent that the latter part is even necessary – because if a platform did create the offending content then Section 230 wouldn't apply anyway – it would still have a huge impact. For instance, could Patreon be liable for helping fund someone's expression? If these Senators have their way, quite possibly.

But it's the first part that nukes the entire Internet from orbit because it prohibits any site from in any way acquiring any money in any way to subsidize their existence as a platform others can use. That's what "accepted payment to make the speech available" means. It doesn't care if the platform actually earns a profit, or runs at a loss. It doesn't care if it's even a commercial venture out to make money in the first place. It doesn't care how big or small it is. It doesn't even care how the site acquired money so that it could exist to enable others' expression. Wikipedia, for instance, is subsidized by donors, who provide "payment" so that Wikipedia can exist to make its users' speech available. But if this bill should pass, then no more Section 230 protection for that site, or any other site that didn't have an infinite pot of money at the outset to fund it forever. Any site that wants to be economically sustainable, or even simply recoup even some of the costs of operation – let alone actually profit – would have to do so without the benefit of Section 230 if this bill were to pass.

It's possible, of course, that some of this effect is just the result of bad drafting, and the Senators really mean to tie payment to the specific speech in question that may be unlawful. But (A) if they can't even draft this part correctly to not have these enormously destructive collateral effects, then there's little reason to believe their other provisions won't be equally ruinous, carelessly if not deliberately.

And (B), it would still be a problem constitutionally because it would make platforms' own First Amendment rights contingent on financial arrangement, which has never before been the case. It is, after all, the First Amendment that allows a platform to choose to carry or refuse any particular content, and not actually Section 230. Section 230 only helps make that First Amendment protection meaningful.

That money might influence a platform's decision does not obviate its constitutional protection. Editorial discretion is editorial discretion, regardless of whether it is affected by financial interest. Because of course editorial discretion always is affected by it, and always has been: newspapers run articles they think people will read because it will sell more papers, and media outlets refuse ads they think will offend. The First Amendment has never been contingent on charitable altruism, and any bill that would try to now make it so deeply offends it.

The sad irony is that it was Trump who declared that he wanted to "open up" First Amendment law and weaken its protections. But with bills like these it's the Democrats who actually are.

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Filed Under: amy klobuchar, business models, free speech, mark warner, mazie hirono, payments, safe tech, section 230, speech


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  1. icon
    Scary Devil Monastery (profile), 9 Feb 2021 @ 3:14am

    Re: Re: Re: Re: Re:

    "How might other countries deal with things that section 230 addresses in the US?"

    Other countries do not possess 3rd-party liability concerns in tort law. The US is bloody unique in that aspect.

    Thus no other nation in the G20 is likely to ever find itself in the same position as the US of actually needing a section 230 to safeguard against what only the US even has as a problem.

    "I have read several such claims over the past several years both here and elsewhere but none of them contained any supporting evidence."

    It's one of those very self-evident statements, like looking out the window and stating that it's raining. But for those persistently locked in the basement, the answer is to be found in the difference in civil litigation law. You literally can not sue, in Sweden, Germany or France, an intermediate for the actions of a user. It's written right into basic telecommunications law - and in some cases right into the national charter.

    "Do they simply go along with accusing third parties?"

    No, it's easier than that. in order to accuse a 3rd party you, the accuser, need to prove 3rd-party direct complicity. With lawsuits not being a potential windfall of income it means only real such grievances are ever even addressed.
    Section 230 isn't needed elsewhere because the danger 230 protects from simply doesn't exist in other nations than the US.

    "In summary, I do not think the internet is working just fine .. anywhere and it appears that current events agree."

    No, Baghdad Bob, the fact that grifters, racists, neo-nazis and shady politicians agree with you that private online platforms should be prevented from dictating their own terms on who gets to use their services still isn't "current events agreeing with you". It just means you've found a bunch of similarly malicious assholes who think it's a shame they can't complain too loudly about the jewish conspiracy or chat about the <N-word> online without being tossed out of the civilized community.


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