A senior Democratic Member of the primary committee of jurisdiction over 47 USC 230 (aka Section 230) has floated a discussion draft that would remove liability protection for technology companies for targeted advertising that violates civil rights laws. This bill is likely one of the opening salvos in the coming war on Capitol Hill between Democrats, Republicans, technology companies, and other stakeholders. And even though this bill seems narrow and leaves to one side larger issues on how Section 230 should be reformed, its chances for enactment are not high.
Representative Yvette Clarke’s (D-NY) “Civil Rights Modernization Act of 2021” would amend 47 USC 230 through the addition of a new section that would make technology companies open to lawsuits for targeted advertising that violates civil rights laws. In her press release, she explained the problem her bill is designed to solve:
There is a history of discriminatory targeting of advertisements that has harmed society by allowing consumers to be excluded from seeing certain ads. These harms are not theoretical and occur in real-time – with particularly troubling implications for communities of color. Personal data such as gender, race, hobbies and interests, and zip code are used to limit the online visibility of many opportunities, thus perpetuating inequities in housing opportunities, credit and employment.
Accordingly, under the bill, Section 230 would no longer shield tech companies for targeted advertising from civil rights enforcement brought by governments, civil lawsuits brought by individuals alleging civil rights violations, or criminal prosecution for violating civil rights laws.
Clarke’s bill defines civil rights law as:
- any Federal, State, or local law that prohibits discrimination on the basis of a protected class or status;
- any other Federal law that is enforced, in whole or in part, by the Civil Rights Division of the Department of Justice; and
- any Federal, State, or local law that prohibits the dissemination of false or misleading information intended, with respect to an election for public office, to prevent voters from casting their ballots, to prevent voters from voting for the candidate of their choice, to intimidate the electorate, or to undermine the integrity of the electoral process.
The first clause would seem to get around the problem of identifying protected classes or statuses through its open-ended language that makes any civil rights statute’s definition an operative one. Consequently, if California defines all members of the LGBTQI community as a protected, and Texas does not (by the way, I’m not sure which state defines protected classes under its civil rights laws), then the residents in California would be able to sue for targeted advertising that violates their civil rights as protected by law. The second clause is fairly straight forward. And, the third clause, would seem like a dealbreaker for Republicans since it would incentivize Facebook, Twitter, and others to remove targeted advertising that, say, calls into question the validity and legality of President Joe Biden’s victory over former President Donald Trump in the 2020 election. But more on that later.
Targeted advertising means the use of algorithm or other means the aiming of advertising at certain subsets of users or groups. It bears note that Clarke’s bill does not ban content that is contrary to civil rights, but rather targeted advertising (i.e., content a party is paying a platform to post.) This latter group would also seem to encompass influencers or public figures that receive some sort of remuneration other than actual money. So, again, hosting content that per se aims to impinge the civil rights of others that falls short of being a federal crime (e.g., making the case Irish Americans should not be allowed to own unicorns does not seem to violate federal laws) would still be protected by Section 230. So, to cite another possible example, if a Fox News figure uses Twitter to advise African Americans not to vote for Democrats in the 2022 mid-term election because the Democratic Party has not delivered for them and takes their votes for granted, this would be outside the scope of what this bill is trying to do so long as the person is not being paid to target that message to African Americans. What’s more, the bill would seem that troll farms would fall outside the bill. Or statements by average citizens, political figures, and others that aim to suppress, say, minority turnout or the voting of turnip farmers in Idaho.
And so, any platform hosting targeted advertising aiming to suppress the votes of African Americans, a key part of the Democratic coalition, as happened in 2016 and 2020, could be sued because the usual Section 230 protected would be gone. This would create obvious incentives for the Facebooks, Twitters, and others to better police and take down content or face lawsuits. Had this law been in place for the 2016 election, paid Russian misinformation and propaganda that aimed to depress the African American vote would have opened Facebook and Twitter to legal liability. In the same vein, hosting discriminatory housing advertisements, as the Trump Administration’s Department of Housing and Urban Development sued Facebook for allegedly doing, would result in Facebook also facing lawsuits from affected people under a range of civil rights statutes. Any such targeted advertising that does not show employment ads to certain classes of people (e.g., minorities, older workers, etc.) would also seem to lose Section 230 protection. The same would apparently be true of targeted advertising that is in the vein of the redlining that prevented many African Americans from accessing affordable mortgage financing in the post-World War II era and continues in certain forms today.
This approach follows the path of the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (P.L. 115-164), a law enacted to remove Section 230 protection for websites that hosted or facilitated prostitution, trafficking, or child sexual exploitation. Thereafter the pages on sites like Craigslist and Backpage with content outside Section 230 went dark overnight after enactment to avoid liability. Clarke may be hoping the same happens if her bill, as drafted, is enacted. Like the earlier bill, the Civil Rights Modernization Act of 2021 is targeted and discrete, leaving to one side the larger debate about Section 230, which may lend weight to its chances of enactment.
However, there are some reasons to suggest this bill would not be acceptable to Republicans. First, they want Section 230 reform to address the bias they claim social media platforms have against them even though no serious evidence has ever been provided to prove these claims. Clarke’s bill seems to sidestep that issue entirely, and so Republicans, at the least, would likely want to add their Section 230 reform, which may sink the bill with Democrats. Additionally, Republicans generally oppose expanding civil rights in federal law, particularly the language that would make election suppression subject to civil rights laws and litigation, and so this bill seems like it would be a nonstarter with Republicans whose votes would be needed in the Senate for passage.
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