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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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


Reader Comments

Subscribe: RSS

View by: Thread


  1. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 6 Feb 2021 @ 9:38pm

    Re:

    Without 230 protections, a service like Twitter would be on the hook for lawsuits if its moderation efforts missed illegal/unlawful speech. Right now, Twitter can afford to handle such lawsuits. It couldn’t back when it was a startup.

    Which is why 230 needs to go. The problem was liability for user created content. A true correction of that problem would have stopped at merely holding users accountable for their own actions. Instead the consequences of that law's enactment actively created a culture of permission-seeking. Now instead of speech being allowed by default, as was the law's intent, it's only OK to speak if the owners (and their owners, and their owners's owners, etc.) are willing to protect you.

    Take away 230 and the Internet will be far worse off. I mean, if you think Google and Facebook and Twitter are “too big” now, wait until they’re the only real players out there because all the others either shut down voluntarily or got sued out of existence.

    Oh, stop it. You and others like you gleefully cite that the law doesn't mandate a place for people to go and demand that it shouldn't. While those who's concerns you dismiss were talking about amending the law to require such places, because others are explicitly abusing that fact. I.e. You are citing the problem as the reason why there can be no solution. If people call you out on this fact you immediately jump into red-herring tactics and breakout every last strawman argument you possibly can. "BuT wHaT AbOuT tHe WhItE sUpReMaCiStS oN 4cHaN!?!?!?!" Newsflash: That will happen anyway. It's going on right now, and YOU'RE an avid cheerleader for it. You already have major networks being shuttered because of social outcries and moral panics. The lawsuits have never been more prevalent in the news. Why do you think that Facebook, Twitter, Google, et. al, are all supporters of "reforming 230"? They know that if reform passes, their businesses will be the only game left in town. Face facts: Your doomsday scenario for the loss of 230 is playing out in front of your eyes. You're just too absorbed in ensuring your side "wins" to notice it.

    Speech being protected from the government is worthless if others with just as much power are free to silence it.


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.