Graham Wants CDA 230, Encryption Separate; Blumenthal Seeks Clarification

Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told us he wants to debate encryption and Communications Decency Act Section 230 separately. But Sen. Richard Blumenthal, D-Conn., told us he may seek to clarify at the July 2 markup how their Earn It Act affects encryption (see 2006230006). “I’m going to wait till the markup to determine exactly what amendments are necessary, but I think the impact of the bill on encryption has been way exaggerated and distorted, so if we can clarify it, we may do it,” Blumenthal said.

“I want to keep the encryption debate separate,” said Graham, who introduced an encryption bill with committee Republicans Tuesday (see 2006240064). The Earn It Act was held over a week at Thursday’s markup, in which Graham said the bill is “rattling the system.” He welcomed a Section 230 bill from Sens. John Thune, R-S.D., and Brian Schatz, D-Hawaii, who hold the top seats on the Senate Communications Subcommittee (see 2006240059). “That’s a good thing,” Graham said. “I’m glad that other people are looking at how to deal with 230 liability issues regarding tech companies.”

“The two [bills] are not necessarily inconsistent, but they take different approaches,” Blumenthal said, citing the narrow authority the Earn It Act grants to the attorney general.

The Thune-Schatz bill may not be a “complete answer, but there’s merit for sure,” Senate Commerce Committee Chairman Roger Wicker, R-Miss., told us. The committee will continue exploring Section 230, he said. Wicker welcomed bipartisan consensus between FCC Commissioner Jessica Rosenworcel and Sen. Ted Cruz, R-Texas, during Wednesday’s oversight hearing (see 2006240069). Rosenworcel and Cruz agreed social media content moderation decisions lack transparency.

Schatz raised speech concerns about the Earn It Act. “I am uncomfortable with Section 230 immunity being handed out by a government body,” he told us. “I think that it is fine to establish some new requirements in order to qualify, but it makes me nervous to leave it to the discretion of a government decision-making body.”

Earn It Act sponsor Sen. Josh Hawley, R-Mo., has issues with the Thune-Schatz bill. The competing bills show there’s been a lot of movement on Section 230, but the Earn It Act is lacking, Hawley told us: “On the speech issue, there’s really no accountability to Big Tech there. Big Tech still has all the power. Individuals still don’t have any power.”

Sen. John Kennedy, R-La., told us he’s drafting his own Section 230 legislation. It would make certain liability protections “unavailable to those social media platforms that encourage through their own conduct hate speech,” he said. “If a social media company decides to use techniques or methods that optimize engagement, then they wouldn’t be able to avail themselves of Section 230.”

The Earn It Act is a bill “wrapped in the best of intentions, combating the horrific scourge of sexual exploitation of minors, but we cannot govern based only on good intent,” said Competitive Enterprise Institute research fellow Patrick Hedger. It would “not only empower unelected federal bureaucrats to decide what is and what is not acceptable speech online but also risks making the Internet even less of a safe place for children.” The bill has Fourth Amendment risks, which could “let defendants get the most damning evidence against them suppressed by the courts,” said NetChoice Vice President Carl Szabo.