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
    Ehud Gavron (profile), 5 Feb 2021 @ 4:40pm

    First Amendment

    Yes, if Congress repeals CDA §230 they can then pass laws creating liability on content servers regardless of the source of the content. This is bad.

    However, the first amendment article seems specious to me.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Nothing there prohibits any NON-Congress [legal] body from creating such laws.

    Nothing there prohibits a site from having its own T&Cs [advertised or not] and working according to same.

    CDA Section 230, specifically found at 47 U.S. Code § 230 found at https://www.law.cornell.edu/uscode/text/47/230 has section (b) about the Policy of the United States.

    Section (e) goes into great lengths as to what is NOT covered, including (1) criminal law, (2) intellectual property law, (3) state law[s], (4) privacy laws, (5) "Sex trafficking" [anything they don't like apparently], etc.

    SO again, I'm confused. Other than PREVENTING CONGRESS from passing laws, how is CDA Section 230 creating the open Internet?

    The Internet was invented in the 1970s. That's a fact.
    Internet access was available to supercomputer centers and the agencies that needed access in the 1980s.
    The commercial Internet was enabled in 1993.
    The telecommunications act that enacted a bunch of stuff but was repealed except for the CDA was 1996.

    It's 2021. Pick your start date and figure out if the 25 year old act that prevented the US Congress from passing laws changed anything. If they allow themselves (don't they "represent 'us'"?) to pass whatever laws they want, how does this fundamentally change the Internet?

    Very fashionable to complain that my first amendment rights are being trampled... but Congress has passed no law doing so. They sure could, and first they'd have to trample §230. Not a high hurdle to jump.

    Very fashionable to complain that without the CDA 230 "protections" there would be no user-generated content (UCG) such as Wikipedia, Facebook, Twitter, Instagram, Techdirt comments, etc.

    I would love to see a post that describes in detail how CDA 230 provides protection to private sites from having T&Cs. That's not in there.

    All I see is that Congress wants to pass laws about sites hosting content, so first they want to remove the protections (§230) that prevent them from doing so. I disagree with the entire effort.

    That having been said I still am not grokking any 1AM issue here.

    Can someone explain that last part? How is 1AM part of this discussion?

    E


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