Sen. Graham Threatens Tech Industry Over Child Exploitation

If Congress won’t pass Section 230 legislation for combating child exploitation (see 2003090065), the alternative is a liability protection carve-out, Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told reporters Wednesday after a committee hearing. He introduced legislation with Sen. Richard Blumenthal, D-Conn., Senate Judiciary Committee ranking member Dianne Feinstein, D-Calif., and Sen. Josh Hawley, R-Mo., that would alter the Communications Decency Act section. Companies would have to comply with best practices for filtering child abuse content or face lawsuits from victims. The legislation would establish a commission of government officials, industry representatives and experts to certify best business practices.

Child exploitation is clearly a secondary concern for industry, based on business models, Graham told reporters. If the bill doesn’t pass, Congress should carve out liability protections like it did with 2018 anti-sex trafficking legislation (see 1912310035).

Blumenthal told reporters he’s open to “constructive” suggestions, when asked about a Section 230 carve-out, which Sen. John Kennedy, R-La., offered during the hearing. Asked if the bill could pass this Congress, Blumenthal cited the strong bipartisan support, notably Judiciary leadership.

It's fair for Graham to lay out two options during the hearing: his proposal or repealing Section 230 immunity entirely, Hawley told reporters: “Let’s not underestimate how rich the tech industry has gotten off Section 230.”

The Internet Association’s major concern with the legislation is that it could result in evidence suppression because of Fourth Amendment concerns, testified IA Deputy General Counsel Elizabeth Banker. Defendants could claim companies are acting as government agents, which could eliminate evidence against predators, she said.

“If that’s the best argument they’ve got, bring it on,” Blumenthal said. He called the Fourth Amendment suggestions “preposterous.”

“I don’t buy anything you just said” about the industry caring, Graham told Banker, saying all companies care about is not getting sued. Banker agreed the current system can be improved. Graham said Judiciary will discuss the possibility of a future panel with DOJ and law enforcement officials, which Sen. Patrick Leahy, D-Vt., hinted at during the hearing.

Section 230 has failed to incentivize companies to deal with this horrific problem, Graham said. It mightn't be possible to stamp out the problem totally, but modern technology has allowed an explosion of child exploitation, he said: “I want to put these bastards in jail. ... I’m tired of talking. We’re going to start voting.”

Graham noted Facebook has done a “damn good job” of finding sexual abuse on its platform, “other sites, not so much.” He and other lawmakers singled out Amazon for its lack of response. The National Center for Missing & Exploited Children CyberTipline received 16.9 million reports in 2019, 15.8 million from Facebook, Graham noted. Twitter made around 46,000 reports, Snapchat about 82,000, and Amazon, eight.

Facebook is the gold standard for reporting, while Amazon is dead last, testified NCMEC Vice President-Exploited Children Division John Shehan. There’s a nosedive in reporting after the top 10 companies, he said. Some companies are stalling and "re-stalling," Kennedy said: “It has to do with money, and that’s unacceptable.” Amazon didn’t comment.

The bill isn’t about ending encryption, as industry suggested, and it’s not about allowing Attorney General William Barr to control the internet, said Blumenthal. Barr would one vote on the proposed commission, while House Speaker Nancy Pelosi, D-Calif., and Senate Minority Leader Chuck Schumer, D-N.Y., would each appoint four representatives, he said. Immunity should be earned and deserved, he said.

Match, which owns dating apps, supports the legislation, said Chief Legal Officer and Secretary Jared Sine. All websites are capable of getting a handle on child abuse, he said, and the legislation is a step in the right direction.

The section is no longer used as a shield for tech companies, as intended, said Catholic University law professor Mary Leary. Instead, tech companies are using it as a sword to defend their own interests, she said.

Sen. John Cornyn, R-Texas, asked why Congress shouldn’t repeal immunity entirely since many platforms function like publishers because they edit content. He noted Facebook has even claimed it’s not a neutral platform in terms of moderating. The statute was part of a larger bill that was found unconstitutional, Leary said. The tech industry was left with a bonus, the liability protections.

The Graham-Blumenthal legislation “threatens all online communications and the encryption technologies used to secure those conversations,” said Free Press Action. It “sets up the U.S. government as the arbiter of all communications and conversations that happen on the internet,” said Senior Policy Counsel Gaurav Laroia.

The legislation “undermines children’s online safety, while doing little to help law enforcement tackle child exploitation,” said NetChoice Vice President Carl Szabo. “The tech industry sent over 17 million child exploitation tips to NCMEC in 2018. The problem is not that cases are not being reported, it’s that reported cases are not being prosecuted.”