New Legislation Isn’t Going to Make Silicon Valley Sweat

US Senator Josh Hawley, Republican from Missouri, speaks during the Senate Small Business and Entrepreneurship Hearings to examine implementation of Title I of the CARES Act on Capitol Hill in Washington, DC on June 10, 2020.  (Photo: Al Drago, Getty)
US Senator Josh Hawley, Republican from Missouri, speaks during the Senate Small Business and Entrepreneurship Hearings to examine implementation of Title I of the CARES Act on Capitol Hill in Washington, DC on June 10, 2020. (Photo: Al Drago, Getty)

U.S. Sen. Josh Hawley, one of Facebook’s most vocal critics on Capitol Hill, introduced new legislation on Wednesday that would purportedly chip away at the limited liability shield that protects social media giants from being sued for content moderation decisions.

In reality, Hawley’s bill would likely make it even harder to hold companies like Facebook and Twitter to account for selectively enforcing their own terms of service.

The bill, dubbed “Limiting Section 230 Immunity to Good Samaritans Act,” would effectively grant users the right to sue major internet companies that enforce their own terms of service unequally and in bad faith. As it stands, users cannot sue any website for content generated by another user (e.g., tweets, comments, posts, etc.) or for any decision by the website owner to restrict access to content that the owner finds “objectionable.”

However, the changes to Section 230 of the Communications Decency Act proposed by Hawley do not appear to place any new restrictions on how companies define their own moderation policies — only that they stick to, and evenly apply, whatever rules they ultimately decide upon. (Any effort to regulate how internet companies moderate content beyond that which is illegal, such as child sexual abuse material, would more than likely run afoul of the First Amendment.)

One section of Hawley’s bill, for example, aims to prohibit “intentionally selective enforcement of the terms of service,” i.e., taking action against one user for violating a rule that others are allowed to break. (This is a pretty obvious nod to allegations that Facebook and Twitter treat conservatives more harshly, a claim for which no real evidence has ever been provided.)

But to counteract this, all any company would need to do is state clearly in its terms of service that it does, in fact, reserve the right to selectively enforce its own rules. Most companies already do this, in one way or another.

Facebook’s user contract, for instance, concludes with the legal catch-all: “We reserve all rights not expressly granted to you.” In the same vein, Twitter already reserves the right to limit access to user content for dozens of nebulous purposes, including in the event it finds a tweet to be of “low quality,” or simply for the purpose of “experimentation.”

In other words, it would be nearly impossible to prove that Twitter or Facebook violated their own terms of service by obscuring or straight up deleting content because both companies already claim the right to do so under myriad, ambiguously defined circumstances.

It’s also not enough simply to demonstrate that either company acted outside the bounds of their terms of service. Under Hawley’s bill, they also have to be doing this in bad faith. This means the plaintiff in a lawsuit against, say, Instagram, would have to demonstrate that Instagram’s moderators did not reasonably believe they were acting in line with the company’s own policies. This would seem practically impossible to pull off.

The most probable outcome is that social media companies will simply amend their moderation policies to rid them of what little specificity they currently contain. In the end, you can’t sue a company for violating a contract that essentially gives it the right to do whatever the hell it wants. This doesn’t seem like the change Hawley is hoping to effect. Of course, the Senator could always be looking to put forward token legislation that goes nowhere.

Facebook didn’t respond to a request for comment. Twitter said it had nothing to share. Neither will probably lose much sleep over the bill, which is unlikely in any case to gain much traction beyond a smattering of articles today.

The real focus in this arena will instead go to the Justice Department, which according to the Washington Post, is preparing to recommend legislation to hold companies like Facebook and Google liable for failing to “crack down on terrorist content, child exploitation, and illicit drug sales,” forms of illicit content that, it’s important to note, aren’t actually protected by Section 230 in the first place.