Rep. Schakowsky Exploring Section 230-Related Bill for Election Misinformation

The office of Rep. Jan Schakowsky, D-Ill., is exploring Section 230-related legislation dealing with election misinformation, she said Tuesday at the State of the Net internet policy conference. “It’s very, very early right now, but I absolutely want to do something, even if it’s narrow on 230” of the Communications Decency Act, Schakowsky told reporters. “If we can craft something, there will definitely be some more hearings, no question about that.” Throughout her talk, she cited blatant lies hosted by Facebook.

Her office isn’t yet drafting language, only “exploring,” she told reporters. It needs to be narrow enough to attract broad support, she said, suggesting specific limits for social media platforms regarding election material. She plans to speak with DOJ, which has expressed interest in reviewing Section 230. She also expects to talk further with House Speaker Nancy Pelosi, D-Calif., about Section 230 concerns.

House Consumer Protection Subcommittee ranking member Cathy McMorris Rodgers, R-Wash., told reporters privacy talks are “going to continue" with Schakowsky. Experts said legislators are making progress, but compromise could be far off.

The subcommittee’s bipartisan staff draft (see 2001080072) was the “first attempt” at moving legislation forward without a private right of action, Rodgers said, noting she doesn’t support a consumer right to sue companies. She referenced other efforts that have “fallen apart” this Congress without directly mentioning the Senate Commerce Committee’s turbulent privacy negotiations, which was reduced from a group negotiation to bilateral talks between Chairman Roger Wicker, R-Miss., and ranking member Maria Cantwell, D-Wash., (see 1912040045). Wicker said during his appearance he’s continuing to work with members of both parties to introduce a bill, citing drafts from both him and Cantwell. Both drafts are stronger than California’s privacy law, Wicker told reporters. Pre-emption doesn’t mean making standards weaker than California, he said.

Schakowsky said a private right of action, pre-emption and FTC rulemaking aren’t all-or-nothing issues. However, she voiced support for FTC enforcement to allow room for right of action. It doesn’t make sense to have concern about rulemaking authority being too broad but also wanting to preclude a right of action, she said.

The goal is a strong bill, stronger than California's and one people can support, said Rodgers. With California's, Washington's and dozens of other state privacy laws, a patchwork is quickly developing that will have state laws conflicting with one another and creating confusion for the consumer and businesses, she said.

Rodgers also referenced China’s theft of American intellectual property, saying it’s how China rose to an economic power. If “China wants to steal our secrets and continue to sell our IP, we should steal their engineers and scientists,” said Rep. Will Hurd, R-Texas. The U.S. can’t risk losing its lead with tech, he said.

It’s possible to have a private right of action without monetary damages in a privacy law, said Center for Democracy & Technology Vice President-Policy Chris Calabrese. Wicker has said he’s open to limited injunctive relief in a bill.

Congress should grant the FTC targeted Administrative Procedure Act rulemaking authority, said former Consumer Protection Bureau Chief Jessica Rich, now Consumer Reports vice president-consumer policy and mobilization. She argued Cantwell’s draft bill includes many rulemaking requirements, which industry groups don’t support.

The prominent draft privacy bills have more in common than differences, which spurs optimism, said Internet Association General Counsel Elizabeth Banker. Legislators putting their names on draft bills is a sign Congress is getting closer to a bill, said Calabrese.

Three prominent tech experts representing a wide spectrum raised concerns about chipping away at Section 230, specifically the impact of 2018 anti-sex trafficking legislation (see 1912310035). Section 230 is a foundational law that allows the stability to innovate, said Public Knowledge Senior Vice President Harold Feld. When you chip away at that without thinking about what will support the rest of the edifice, you will have a lot of unintended cracks and breakdowns, he said.

Attorney Cathy Gellis noted the chilling speech issues from the 2018 law. Craigslist took down certain advertisements to avoid liability, which for example, had a devastating impact on the livelihood of a massage therapist, as detailed in a federal court case (see 2001240018). Craiglist isn’t the only website that ended up censoring content, she said. If Congress messes with Section 230, it better make sure the fix is narrowly tailored to what it’s addressing, she said.

Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and Sen. Richard Blumenthal, D-Conn., are considering legislation that would affect website liability for child exploitation (see 1912190079). Blaming the tool, Section 230, is far easier than holding the perpetrators accountable, said Stand Together Vice President-Technology and Innovation Jesse Blumenthal.