Senators Amy Klobuchar (D-MN) and Ben Ray Luján (D-NM) today introduced a bill that would amend Section 230 of the Communications Decency Act by introducing potential liability for online platforms that algorithmically promote health misinformation during the period of a public health emergency, such as the COVID-19 pandemic. It also directs the Secretary of Health and Human Services to issue “guidance regarding what constitutes health misinformation” upon the enactment of the bill.
“We need a long term solution that goes beyond removing accounts spreading falsehoods about the crisis,” Senator Klobuchar said. “This legislation will hold online platforms accountable.”
But according to the reactions of some tech policy experts, the fatal flaw of the proposal is in its final paragraph. Turning to a political appointee in the Executive Branch to provide a definition of “what constitutes health misinformation” will undoubtedly be regarded as a political decision, and could mean the definition would change from administration to administration. It also raises First Amendment issues.
So, when Trump wins in 2024 and his HHS secretary declares that promoting vaccines is “misinformation” what happens then? https://t.co/CP3tjctVMX— Mike Masnick (@mmasnick) July 22, 2021
Jeff Kosseff, author of a book on Section 230, The 26 Words That Created the Internet, tweeted that Klobuchar’s bill “is not the solution to the problem.” He elaborated that if “this bill were to become law, every deplatformed antivaxxer will sue for First Amendment violations, claiming that they were blocked because of this new condition.”
Daphne Keller, Platform Regulation Director at the Stanford Cyber Policy Center tweeted “I’m too depressed by the state of political discourse to even count how many constitutional hurdles this bill fails to clear. Lawmakers that waste time being performative are not serving anyone’s interests.”
Evan Greer, a director at the advocacy group Fight for the Future, tweeted a thread saying the the bill would not solve the problems it seeks to address, but rather would create new ones. Greer points out the last paragraph of the bill specifically, as well, as highly problematic.
The very last paragraph of the bill basically tasks the Secretary of Health and Human Services with issuing guidance about what speech constitutes “medical misinformation,” for the express purpose of then excluding amplification of that speech from Section 230 protections. pic.twitter.com/K7RnaoG3jy— Evan Greer (@evan_greer) July 22, 2021
“If health misinformation is constitutionally protected, then there’s really not a lot Congress can do about that,” Eric Goldman, a law professor at Santa Clara University, told NPR. “Removing Section 230, which is a liability shield, doesn’t expose a service to any new liability, because the Constitution will fill in the protection.”
“Plaintiffs bringing civil suits against platforms for health misinformation, even if Section 230 didn’t apply, would still have to show that they were harmed by the misinformation and that the platform was responsible for it, which are high hurdles,” said Dr. Mary Anne Franks, a law professor at Miami Law School and President of the Cyber Civil Rights Initiative. “If Congress really wants to get serious about health misinformation, another option would be to pass a narrow law criminalizing it. Section 230 does not apply to violations of federal criminal law, so platforms couldn’t raise it as a defense (though they would still be protected from civil suits).”
Not all the reactions were negative. Imran Ahmed, CEO of the Center for Countering Digital Hate that produced the Disinformation Dozen report referred to by the White House, said “Senators Klobuchar and Lujan’s bill would be a proportionate and effective solution to social media platforms’ failure to act on vaccine misinformation identified by the President and Surgeon General. Given self-regulation, Congressional oversight and even Presidential criticism hasn’t moved these enormous companies, perhaps economic and legal consequences might drive action.”
The introduction of the bill follows a week of dialogue on COVID-19 and vaccine misinformation on social media kicked off when the U.S. Surgeon General, Vivek Murthy, issued a warning and set of recommendations on combatting what he called “an urgent threat to public health.” President Joe Biden waded in, accusing social media platforms of “killing people.” His White House indicated it would look into Section 230 reform, as well.
Read the full text of the bill:EHF21778
Justin Hendrix is CEO and Editor of Tech Policy Press, a new nonprofit media venture concerned with the intersection of technology and democracy. Previously, he was Executive Director of NYC Media Lab. He spent over a decade at The Economist in roles including Vice President, Business Development & Innovation. He is an associate research scientist and adjunct professor at NYU Tandon School of Engineering. Opinions expressed here are his own.