A number of legislative proposals to amend Section 230 of the 1996 Communications Decency Act (“Section 230”) have already been introduced in the new Congress.  Section 230 provides immunity to an owner or user of an “interactive computer service” — generally understood to encompass internet platforms and websites — from liability for content posted by a third party.

On February 8, 2021, Senator Mark Warner (D-VA) introduced the Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act (“SAFE TECH Act”), cosponsored by Senators Amy Klobuchar (D-MN) and Mazie Hirono (D-HI).  The bill would narrow the scope of immunity that has been applied to online platforms.  Specifically, the SAFE TECH Act would amend Section 230 in the following ways:

  • Limited Scope of Immunity: Section 230 currently immunizes providers of interactive computer services from liability based on any information provided by another person.  The SAFE TECH Act would scale back the scope of this liability shield in two ways.  First, the bill would amend Section 230 so that providers of interactive computer services are immunized only from “speech” posted by another person, not “information” broadly.  Additionally, the bill would disqualify from immunity a provider or user who has “accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech.”
  • Affirmative Defense: The bill would also make Section 230 an affirmative defense, shifting the burden of persuasion to the defendant to prove by a preponderance of the evidence why the protection offered by Section 230 should apply to a particular claim.  As Justice Thomas reflected in his recent statement on the denial of certiorari in Malwarebytes, Inc. v. Enigma Software Group USA, LLC, many claims against providers of interactive computer services are dismissed under Section 230 without engagement with the facts.  If Section 230 provided an affirmative defense, courts could be required in many cases to grapple with the facts to determine whether the defendant has met its burden under the law.  This provision would align with the type of reform espoused by Justice Thomas, which would authorize courts to consider the merits of legal claims even when they may fall within the scope of Section 230 immunity.  As he described in his Malwarebytes statement, “[p]aring back the sweeping immunity courts have read into § 230 would not necessarily render defendants liable for online misconduct.  It simply would give plaintiffs a chance to raise their claims in the first place.  Plaintiffs still must prove the merits of their cases, and some claims will undoubtedly fail.”
  • Limited Good Samaritan Provision: The SAFE Tech Act would limit Section 230’s “Good Samaritan” provision, which enables providers to remove or retain content shared by information content providers on their website without facing liability for their decisions to do so.  The SAFE Tech Act would enable plaintiffs to pursue injunctive relief when a platform fails “to remove, restrict access to or availability of, or prevent dissemination of material that is likely to cause irreparable harm.”  The bill would shield websites from liability for their decision to comply with an order to remove, restrict access to, or prevent dissemination of content under this provision.
  • Added Exceptions to the Law’s Application: Finally, the bill would add five new exceptions to Section 230(e), making it possible for interactive computer services to be found liable under civil rights laws; antitrust laws; stalking, harassment, and intimidation laws; international human rights law; and on wrongful death actions.  The proposed exception to allow for claims under civil rights laws would apply to claims under both state and federal law that a provider has discriminated on the basis of a protected class or that a provider’s conduct has the effect of discriminating on the basis of a protected class.

Senator Warner’s bill joins another bill in the Senate, and four proposals in the House of Representatives, in mounting pressure to amend Section 230.