Inside Cybersecurity

February 29, 2024

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Cyber Reg Watch: Analysis

Communications Act reform: Keeping focus on security aspects a challenge for policymakers

By Charlie Mitchell / July 29, 2020

A Senate Commerce panel this week pored over the nuances of reforming Section 230 of the 1996 Communications Decency Act -- which provides liability protection to internet platforms hosting user-generated content -- but the issue could easily slip from being a security matter to yet another arena for partisan culture wars.

Kiersten Todt of the Cyber Readiness Institute stressed, “The issue to address with Section 230 is disinformation and misinformation. The objective of a revision is to ensure more accurate and truthful content is placed on these platforms. Look at what Twitter did -- they were late to the game but at least they got there -- it acknowledged that factually incorrect data was not constructive. This is not about free speech but accurate content. Distribution of disinformation is a national security risk.”

Keeping a debate focused on national security considerations will be a tall order, though.

The White House issued a statement today praising this week’s Commerce Department petition to the Federal Communications Commission calling for regulatory action making “clear when online platforms can claim section 230 protections if they restrict access to content in a manner not specifically outlined under the Act.”

“President Trump will continue to fight back against unfair, un-American, and politically biased censorship of Americans online,” the White House said.

Expounding on the meme that services hosting user-generated content are “curating” to the detriment of conservatives and Republicans, Sen. John Thune (R-SD) said web services were sustaining a “fiction of being a neutral platform for all ideas.”

The demand to reform Section 230 is bipartisan, however, with Democrats – and some Republicans -- seeing such action as essential to confronting disinformation from hostile nation-states. Sen. Brian Schatz (D-HI) is cosponsoring reform legislation with Thune.

At the Commerce hearing, Sen. Amy Klobuchar (D-MN) stressed “we don’t have the protections in place” to confront disinformation and other fallout from migration of “billions and billions of dollars” in advertising from TV and radio, which have regulations, “to websites, which don’t.”

Sen. Richard Blumenthal (D-CT) said “the broad message to industry is the time for reform is now.”

But the tech industry says the actual workings of Section 230 are being wildly misconstrued.

The Information Technology Industry Council in a letter to the editor in the Washington Post said it’s “disheartening that President Trump seeks to weaken Section 230; that former vice president Joe Biden, the presumptive Democratic nominee for president, called for its outright repeal; and that some members of Congress are acting to undermine this critical protection.”

ITI president and CEO Jason Oxman wrote, “Widely mischaracterized as immunity from liability for speech by platforms, the protections of Section 230 extend only to the good-faith efforts of online providers to prevent ‘bad speech’ (libel, imminent threats of violence, etc.) by third parties posted on platforms. It encourages today’s tech companies not to turn a blind eye to unlawful content simply because of the risk of missing something and being held responsible for third-party speech.”

Oxman concluded, “With the exception of broadcast radio and television, content regulation is not the FCC’s business. It shouldn’t be here, either.”

Former Rep. Christopher Cox (R-CA) in his testimony before the Senate Commerce panel amplified the message on how Section 230 actually works and the need to avoid unintended consequences in any reform.

“In the 21st century, Section 230’s protection of website operators from liability for content created by their users operates as an essential buttress of free expression,” Cox said. Current law provides tools for combatting abuses and for criminal law enforcement, he said. He helped write the Section 230 language in 1996.

But Todt, who was executive director of the 2016 Commission on Enhancing National Cybersecurity, said: “We need to dispel the notion by tech companies that they are defenders of free speech; they have self-deputized themselves to defend the first amendment. This assertion of free speech defense is their way of confusing the real issue, which is how do we regulate these tech platforms that have an impact on the national and economic security of our nation and have become part of our critical infrastructure.”

Todt said, “Section 230 is outdated but not irrelevant; it needs to be updated. We need to approach a revision to Section 230 with a comprehensive understanding and appreciation of its role and have a thoughtful approach to achieving consensus on what needs to be updated and why.”

Todt and other cybersecurity professionals see a weakness in Section 230 that adversaries in cyberspace are exploiting. That could be grounds for a productive, nonpartisan policy dialogue. Whether such a thing is possible in the superheated political atmosphere of 2020 remains to be seen. – Charlie Mitchell (