Despite Trump Push, CDA S. 230 Language Won't Pass in NDAA

Congress should “do away” with Communications Decency Act Section 230 but not through the FY 2021 National Defense Authorization Act, Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., told reporters Wednesday. He said negotiators won’t include Section 230 language in the final bill, despite a veto threat from President Donald Trump (see 2012010064). Section 230 “has nothing to do with the military, and I agree with his sentiments we ought to do away with 230, but you can’t do it in this bill,” Inhofe said, citing it as a nonstarter for Democrats.

Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told reporters he supports the president using “all” leverage to alter Section 230 language, including veto power. Trump Tuesday night threatened to veto the bill if it didn’t include the Section 230 language. The White House declined further comment.

“The two things are unrelated, but the president has the ability to make them related,” said Senate Consumer Protection Subcommittee Chairman Jerry Moran, R-Kan. Senate Commerce Committee Chairman Roger Wicker, R-Miss., said he had yet to speak to Inhofe about nixing the language.

Overriding a veto would depend on what’s in the final bill, said Senate Homeland Security Committee Chairman Ron Johnson, R-Wis. “I don’t know what kind of poison pills the House may be trying to add, so I can’t really say until I see the final NDAA,” he said, noting it’s probably “more appropriate” to settle Section 230 negotiations through the Senate Commerce Committee. Platform moderation policies need to be analyzed, he said: “They need total transparency. They need to publish these policies.”

Negotiators agreed on the bill's final version Wednesday afternoon. House Armed Services Committee Chairman Adam Smith, D-Wash., and ranking member Mac Thornberry, R-Texas, announced the news: “We have toiled through almost 2,200 provisions to reach compromise on important issues affecting our national security and our military. Nearly half of the Members of the House have contributed provisions to this measure.”

“We all know that Section 230 needs to be dealt with,” said Sen. Marsha Blackburn, R-Tenn., declining to comment on the prospect of a veto. It's “completely unrelated to the topic the Senate is dealing with,” said Sen. Ron Wyden, D-Ore. Sen. James Lankford, R-Okla., said he’s supportive of negotiating Section 230 and “getting it right.”

“Repealing Section 230 is itself a threat to national security,” said Internet Association interim CEO Jon Berroya. “The law empowers online platforms to remove harmful and dangerous content, including terrorist content and misinformation.” Holding up the NDAA in an effort to “kill” Section 230 is a “terrible idea that politicizes national security at the expense of free speech and innovation in the Internet economy,” said Information Technology and Innovation Foundation Research Analyst Ashley Johnson.

Platform conduct and Section 230 need to be rethought, House Antitrust Subcommittee Chairman David Cicilline, D-R.I., House Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill., and several officials from the U.K., Canada, Malaysia and India said Wednesday during a livestreamed meeting of the International Grand Committee on Disinformation. Schakowsky said she will introduce in January the Online Consumer Protection Act (see 2009250030) to require platforms to disclose in “easily understood terms” their policies on harmful content and misinformation and remove certain Section 230 protections. Congress needs to “reform” Section 230, she said.

Antitrust laws need to be modernized as well, said Cicilline. Companies like Google, Facebook, Amazon and Apple control access to certain markets, allowing them to pick “certain winners and losers throughout the economy,” he said. They abuse dominance in two ways: exploiting companies that rely on their platforms and excluding rivals, he added.

Next year, the U.K. Parliament will debate a new bill to regulate “online harms” and establish that social media companies have a duty of care to their users, said Member of Parliament Damian Collins. It will include the responsibility to act against harmful content like misinformation, he said: The new law envisions a new regulator to oversee compliance.

Policymakers have ceded the terms to these companies for far too long, said Canadian MP Charlie Angus. He urged legislators to consider fundamental concepts for privacy and fundamental rights that need to be protected.

Regardless of views on Section 230, “consequences of curtailing or repealing it are far too great to render it a mere footnote to must-pass legislation,” NetChoice, Competitive Enterprise Institute and others wrote. “Any changes must be carefully considered before altering the status quo.” Americans for Prosperity, the R Street Institute and FreedomWorks also signed.