Recap | Holding Big Tech Accountable: Targeted Reforms to Tech's Legal Immunity

The House Commerce Committee's Subcommittee on Communications and Technology held a legislative hearing on four bills:

• H.R. 2154, the "Protecting Americans from Dangerous Algorithms Act"
• H.R. 3184, the "Civil Rights Modernization Act of 2021"
• H.R. 3421, the "Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act" or the "SAFE TECH Act"
• H.R. 5596, the "Justice Against Malicious Algorithms Act of 2021"

The hearing included two panels of witnesses. The first will focus on the insidious problems from which some social media platforms online are profiting. And the second will consider how reforms to Section 230 of the Communications Decency Act can play a part in addressing those problems. 

Some argue that social media platforms can harm their users through the decisions the platforms make regarding how to display user-generated content including, targeting, ordering, or recommending certain content, among other things. Concerns have been raised specifically about the harms to children perpetrated by social media algorithms. For several years, reports have indicated that the algorithms and recommendation tools for many popular social media sites were responsible for the appeal of extremist groups and the prevalence of divisive and racist content. 

In opening remarks, Commerce Committee Chairman Frank Pallone (D-NJ) said, "The legal protections provided by Section 230 of the Communications Decency Act have played a role in that lack of accountability by stopping victims from having their cases heard." He went on to say that Section 230 is critically important to promoting a vibrant and free internet, but "I agree with those who suggest the courts have allowed it to stray too far." 

Lawmakers signaled they would press forward with legislation to make internet platforms more accountable to online users, in what is expected to be a showdown between Washington and Silicon Valley. Legislators are seeking to scale back the legal protections that generally allow social-media platforms to post user content without being liable for it. Some of the changes under consideration would allow people seriously hurt by social-media algorithms—including some teenage girls who suffer body image issues—to recover damages in court.

In general Democrats favor further tightening of tech platforms’ restrictions, including on hate speech and misinformation. Republicans by contrast think tech companies often use those restrictions to censor conservatives. That could lead to tension between the two sides in deciding which online harms to target. 

“I’m deeply troubled by the path before us,” said Rep. Cathy McMorris Rodgers (R-WA), the top Republican on the committee, referring to some of the bills sponsored by Democrats that under consideration. “It’s calling for more censorship.”

Among those testifying was Frances Haugen, a former Facebook employee who released internal documents showing harms from the company’s products, from teenagers’ mental-health problems to poisoned political debate. She cited examples of harm from Facebook including teenagers whose mental health is undermined by Instagram, healthcare professionals who must deal with the consequences of Covid-19 vaccine conspiracies, and people world-wide world who experience the effects of online radicalization.

Some civil rights activists fear that any changes to Section 230, including those targeting algorithmic amplification, could cause more harm than good.

“We don’t want to chill amplification that is benign or beneficial, but also don’t want to prevent accountability when platforms’ actions cause harm even in the absence of personalized recommendations, or outside of carve-outs for important subjects like civil rights,” testified Matt Wood, Free Press Action vice president and general counsel. 

Other activists fear Congress may be moving too fast and without properly considering the consequences for vulnerable communities when they last changed the law. After Trump signed SESTA / FOSTA in 2018, sex workers were forced off websites like Backpage.com where they screened clients, despite the bill’s stated purpose to combat sex-trafficking.