To add to the growing number of bills that would amend or revoke Section 230 of the Communications Decency Act, last month Senator Amy Klobuchar (D-MN) introduced the Health Misinformation Act of 2021 (S.2448).  Senator Ben Lujan (D-NM) cosponsored the bill.

The bill would amend Section 230 to revoke the Act’s liability shield for internet platforms that use algorithms to promote health-related misinformation during “public health emergencies.”  Under the bill, the U.S. Department of Health and Human Services would issue guidance regarding what constitutes health misinformation.  The bill would not revoke the Section 230 liability shield when the promotion of such information occurred through a “neutral” process, such as the appearance of information chronologically in a user’s social media feed.

Senator Klobuchar’s bill joins a growing number of proposals that address the use of algorithms by internet platforms.  For example, in June Senator John Thune (R-SD) introduced the “Filter Bubble Transparency Act” (S.2024), which would require operators of internet platforms that use algorithms to notify users if the platform uses an algorithm that makes inferences based on user-specific data to determine the order or manner that content is furnished.  In May, Sen. Edward J. Markey (D-MA) introduced the “Algorithmic Justice and Online Platform Transparency Act” (S.1896), which would require that online platforms disclose the categories of personal information collected to maintain algorithms, disclose information about how such information is used, and provide descriptions of the platform’s automated and manual content moderation practices.

We will continue to monitor legislative developments on this front.

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Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the…

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the U.S. Congress, and other federal and state regulators on a proactive basis, she has experience helping clients respond to informal investigations and enforcement actions, including by self-regulatory bodies such as the Digital Advertising Alliance and Children’s Advertising Review Unit.

Ms. Tonsager’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of endorsements and testimonials in advertising and social media, the collection of personal information from children and students online, behavioral advertising, e-mail marketing, artificial intelligence the processing of “big data” in the Internet of Things, spectrum policy, online accessibility, compulsory copyright licensing, telecommunications and new technologies.

Ms. Tonsager also conducts privacy and data security diligence in complex corporate transactions and negotiates agreements with third-party service providers to ensure that robust protections are in place to avoid unauthorized access, use, or disclosure of customer data and other types of confidential information. She regularly assists clients in developing clear privacy disclosures and policies―including website and mobile app disclosures, terms of use, and internal social media and privacy-by-design programs.

Andrew Longhi

Andrew Longhi is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and Communications and Media Practice Groups. Andrew advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, commercial transactions…

Andrew Longhi is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and Communications and Media Practice Groups. Andrew advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, commercial transactions involving personal information and cybersecurity risk, and responses to regulatory inquiries. Andrew is Admitted to the Bar under DC App. R. 46-A (Emergency Examination Waiver); Practice Supervised by DC Bar members.