"SAFE Tech Act", proposed by 3 Democratic Senators, conceivably could destroy all "self-published" or self-funded content online, however "unintentionally"

 

Charlottesville

Democratic Senators Mark Warner (VA), Mazie Hirono (D-HI), and Amy Klobuchar (D-MN) have introduced a potentially “dangerous” bill called the “SAFE TECH Act”, which proposes to Amend Section 230.  As of this writing, I am unable to find an S number or official filing for it.   The official PDF is here.

The change to the wording of Section 230 is as follows:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any speech provided by another information content provider, except to the extent the provider or user has accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech.

“(B) (c)(1)(A) shall be an affirmative defense to a claim alleging that an interactive computer service provider is a publisher or speaker with respect to speech provided by another information content provider that an interactive computer service provider has a burden of proving by a preponderance of the evidence.”

The second clause Bc1a does not make a lot of sense read literally (it needs some punctuation, as it reads like a run-on sentence in high school English class).  I believe that it is attempting to give a platform or service a kind of “safe harbor” if it uses “good faith” in removing user content.

Senator Warner’s press release has some clues as to the intentions.

The sponsors claim that the purpose of the bill is to ensure that Section 230 “Doesn’t apply to ads or other paid content – ensuring that platforms cannot continue to profit as their services are used to target vulnerable consumers with ads enabling frauds and scams”.  For example.

The FAQ has more similar language. “A: The SAFE TECH Act makes clear that Section 230 immunity does not apply to any paid content. This would include advertisements as well as things like marketplace listings.”  The obvious reference is Craigslist, or an online personals or classified ads.

But the problem is that even ordinary websites (like my four blogs on Bluehost) are, quite literally, paid content because Bluehost has “made the speech available”.  If I were to set up my own server, even the telecom company has “made the speech available”.  Some individuals do this, with the assistance of infrastructure companies like Cloudflare.   The bill, read quite literally, might (even unintentionally) ban self-published content online from individuals without actual corporate or organizational credibility, as in theory it would pose an unmanageable downsteam liability risk for the host.

It would not affect self-published books (through companies like Author Solutions) because those companies indeed perform “content review” before publishing books for customers (so they take liability, they are publishers).

I doubt that the sponsors of the bill thought this possible interpretation of their language through to logical conclusions.  They probably don't realize that some people do create non-commercial content to inform (or maybe to persuade or even proselytize). 

Blogger (or Wordpress without a domain) would literally seem not to be “paid content” and neither would YouTube.  But these services are indirectly “paid for” by advertisers, even for blogs or videos that don’t show ads (as with Adsense). Senators, you need to learn to think like Judge Gorsuch!!

Aaron Mackey, India McKinney, and Jason Kelley pointed out some of these interpretation problems in a February 25 piece on Electronic Frontier Foundation.  Taylor Hatmaker offers a briefer critique Feb.5 on Techcrunch.  K. Holt discusses it on Engadget (Feb 5).

A web hosting company might reasonably decide to offer its services only to customers actually running transactional business, not just to express their own political opinions or even offer their own analysis (like this blog post, or previous posts of mine on coronavirus lockdowns or even on gays in the military the issue that got me started in the 1990s!)  Their reaction might be, “accept intersectionality and support your non-profit".  Don’t do this yourself!  (Or, they could consider agencies who vet people who want to have their own domains first, but essentially allow only people willing to speak for (intersectionalized) groups first or who represent recognized professional organizations or companies.) 

That is in fact what the Left wants.  Individualized political speech like mine (when self-funded) isn’t accountable and its effect remain hidden, and weaken the “solidarity” needed to get massive reforms.  And then there is the whole psychology of “critical theory” to deal with, on top of everything else.

One way to get around this could be to make web hosts and other infrastructure companies (like Cloudflare) “common carriers”.  Usually these companies don’t moderate content and don’t recommend content with algorithms.  They are funded by consumers who publish, not by advertisers, and that is a distinction that observers (and lawmakers) often overlook. However, some of them started bouncing their most egregious customers after Charlottesville, and probably again after January 6.

There is a House hearing today on Section 230 with Zuckerberg, Pichai, and Dorsey.  This is House, not Senate, so it probably won’t get into the bill directly. And it seems to deal with social media platforms driven by ads and algprithms, not hosted content, which gets overlooked.  

Update: March 26 Ian Corzine has a one minute alarming spot on this, Feb, 5.  Again, this is an evolving topic.