Section 230 Algorithm Bill

Two House Democrats have introduced legislation to reform 47 U.S.C. 230 (Section 230) from a different perspective than the flurry of Republican bills introduced in the last few months. Unlike those bills, the “Protecting Americans from Dangerous Algorithms Act” (H.R.8636) would subject platforms like Facebook, Twitter, and YouTube to civil suits on the basis of the algorithms used to amplify content that violates the civil rights of others or results in international terrorism. This bill is sponsored by Representatives Tom Malinowski (D-NJ) and Anna Eshoo (D-CA), the latter being a senior member of one of the committees of jurisdiction over Section 230. This bill suggests an area on which Democrats may focus in the Section 230 debate. Most of the Republican bills have focused on the responsibilities and latitude afforded to platforms to take down or edit content without fear of liability under Section 230 to address the alleged problem of conservative material being disadvantaged.

H.R. 8636 would remove the liability shield under Section 230 for the use of algorithms if the content that is amplified and spread results in civil rights violations or international terrorism. It is interesting that Malinowski and Eshoo seem to omit domestic terrorism unless they understand the statutes allowing for suits alleging civil rights actions to encompass terrorism committed by U.S. nationals or residents. However, there is a safe harbor that would permit the use of algorithms that is likely intended to change how platforms are deploying them. If algorithms and similar methods are used “in a way that is obvious, understandable, and transparent to a reasonable user based only on the delivery or display of the information (without the need to reference the terms of service or any other agreement),” then a platform would still enjoy liability protection under Section 230. The bill also carve out platforms below a certain amount of traffic. H.R.8636 would “not apply to   an interactive computer service that (in combination with each subsidiary and affiliate of the service) has 50,000,000 or fewer unique monthly visitors or users for a majority of the preceding 12 months.’’

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