But for once, the tech executives weren’t the only target of the lawmakers’ ire. From the start, senators of both parties focused their criticism on a law that Congress passed in 1996 — a law that paved the way for social media as we know it. That law, said Sen. Dick Durbin (D-Ill.), “needs to change.”
The statute in question is Section 230 of the Communications Decency Act, which gives online service providers broad immunity from lawsuits over their users’ posts, with the goal of promoting free expression online. Over the years, it has survived court challenges, legislative pushes and an executive order by President Donald Trump.
Now, it is in Congress’s sights once again. Although the law still has its ardent defenders, including large swaths of the tech lobby, there were signs in Wednesday’s hearing that its bipartisan support may be eroding.
In his opening remarks, Durbin, the chairman of the Senate Judiciary Committee, said Congress must “look in the mirror” and share blame with the tech companies for failing to protect children online. A law initially intended to protect fledgling online forums, he said, now allows “the most profitable industry in the history of capitalism” to operate “without fear or liability for unsafe practices.”
Durbin’s Republican counterpart, Sen. Lindsey Graham (R-S.C.), ramped up the rhetoric, at one point drawing applause by telling Meta CEO Mark Zuckerberg, “You have blood on your hands.”
“Social media companies as they are currently designed and operate are dangerous products,” Graham said, that are “destroying lives and threatening democracy itself.” Gesturing at the assembled CEOs of Meta, TikTok, X, Snap and Discord, he added: “Of all the people in America we could give blanket liability protection to, this would be the last group I would pick.”
Section 230 has long had its critics in Washington. But they were once a vocal minority in Congress. Now that group increasingly includes people like Durbin and Graham, who lead powerful committees and were both members of Congress when Section 230 was passed.
It also includes the last two presidents, albeit for different reasons. Trump sought to weaken Section 230 protections when companies “censor” or moderate users’ speech. President Biden has called on several occasions for changing Section 230 to make it easier to hold tech companies responsible for spreading harmful content.
There was a time when members of Congress would routinely preface their critiques of tech CEOs by thanking them for their innovative products and the jobs their companies have created. At Wednesday’s hearing, there were few such niceties. And calls for tech companies to self-regulate have morphed into demands that they support specific bills aimed at reining them in.
Those include a package of five bills related to online child sexual abuse material (CSAM) advanced by the Judiciary Committee in May. Among them is the Earn It Act, which would roll back Section 230 protections when platforms facilitate content that violates civil and state criminal laws on child sexual exploitation. A second of the bills, the Stop CSAM Act, would create a new cause of action for victims and their families to sue over such material.
The idea is that exposing online platforms to lawsuits would force them to take a more proactive approach to detecting and removing that material. The notion was a popular one at Wednesday’s hearing, though the bills have yet to make it to the Senate floor for a vote.
Questioning Snap CEO Evan Spiegel, Durbin cited the case of a 12-year-old girl who was targeted while using Snapchat. When the victim sued, Snap claimed immunity under Section 230.
“Do you have any doubt that, had Snap faced the prospect of civil liability for facilitating sexual exploitation, the company would have implemented better safeguards?” Durbin asked.
Spiegel replied that the company already has safeguards.
Outside the hearing room, there remains significant opposition. Though advanced by the committee, the bills have yet to see a floor vote in the Senate, and they would face an even tougher road in the House.
Key figures in Congress also argue that the changes proposed to Section 230 would create more problems than they would solve. Among them is Sen. Ron Wyden (D-Ore.), one of the statute’s original co-authors.
“I’m not against changes to 230 if they would solve real problems without creating massive collateral damage for marginalized groups,” Wyden said via email. “Unfortunately, both the EARN IT Act and STOP CSAM Act would make kids less safe by encouraging companies to scan everything on users’ phones and undermine their secure communications. They would do virtually nothing to catch predators.”
Wyden has suggested instead that courts should take a narrower interpretation of the existing law, leaving platforms liable when their own design choices and actions lead to harmful content.
Yaël Eisenstat, a former senior Facebook official who is now a senior policy fellow at Cybersecurity for Democracy, said she was gratified by the momentum to revisit Section 230, which she says needs to be “updated” to account for tech companies’ own tools and behaviors. But she said any changes to the law “have to be approached very cautiously” to avoid chilling legitimate speech.
It has already survived one legislative carve-out, a 2018 law known as SESTA-FOSTA that rolled back liability protections around content related to the facilitation of sex trafficking. The next bill that seeks to chip away at Section 230 will have to reckon with critics who argue that SESTA-FOSTA made sex workers less safe without denting the sex trafficking business.
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