[Senate Hearing 118-33]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 118-33

                        PLATFORM ACCOUNTABILITY:
                          GONZALEZ AND REFORM

=======================================================================

                                HEARING

                               before the

                        SUBCOMMITTEE ON PRIVACY,
                        TECHNOLOGY, AND THE LAW

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 8, 2023

                               __________

                           Serial No. J-118-7

                               __________

         Printed for the use of the Committee on the Judiciary





                 [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]






                                 

                 U.S. GOVERNMENT PUBLISHING OFFICE

52-654 PDF                WASHINGTON : 2023











                       COMMITTEE ON THE JUDICIARY

                   RICHARD J. DURBIN, Illinois, Chair

DIANNE FEINSTEIN, California         LINDSEY O. GRAHAM, South Carolina, 
SHELDON WHITEHOUSE, Rhode Island             Ranking Member
AMY KLOBUCHAR, Minnesota             CHARLES E. GRASSLEY, Iowa
CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
MAZIE K. HIRONO, Hawaii              TED CRUZ, Texas
CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
ALEX PADILLA, California             TOM COTTON, Arkansas
JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
PETER WELCH, Vermont                 THOM TILLIS, North Carolina
                                     MARSHA BLACKBURN, Tennessee

             Joseph Zogby, Chief Counsel and Staff Director
      Katherine Nikas, Republican Chief Counsel and Staff Director

            Subcommittee on Privacy, Technology, and the Law

                 RICHARD BLUMENTHAL, Connecticut, Chair

AMY KLOBUCHAR, Minnesota             JOSH HAWLEY, Missouri, Ranking 
CHRISTOPHER A. COONS, Delaware           Member
MAZIE K. HIRONO, Hawaii              JOHN KENNEDY, Louisiana
ALEX PADILLA, California             MARSHA BLACKBURN, Tennessee
JON OSSOFF, Georgia                  MICHAEL S. LEE, Utah
                                     JOHN CORNYN, Texas
                David Stoopler, Democratic Chief Counsel
               Michael Velchik, Republican Chief Counsel









                            C O N T E N T S

                              ----------                              

                        MARCH 8, 2023, 2:05 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................     1
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
Hawley, Hon. Josh, a U.S. Senator from the State of Missouri.....     4

                               WITNESSES

Witness List.....................................................    35
Bennett, Jennifer, principal, Gupta Wessler PLLC, San Francisco, 
  California.....................................................     9
    prepared statement...........................................    36
Farid, Hany, professor, School of Information and Electrical 
  Engineering and Computer Science, University of California, 
  Berkley, Berkeley, California..................................     8
    prepared statement...........................................    42
Franks, Mary Anne, professor of law and the Michael R. Klein 
  Distinguished Scholar Chair, University of Miami School of Law, 
  Miami, Florida.................................................     6
    prepared statement...........................................    46
Schnapper, Eric, professor of law, University of Washington 
  School of Law, Seattle, Washington.............................    12
    prepared statement...........................................    52
Sullivan, Andrew, president and chief executive officer, Internet 
  Society, Reston, Virginia......................................    11
    prepared statement...........................................    62

                               QUESTIONS

Questions submitted to Hany Farid by Chair Durbin................    71
Questions submitted to Andrew Sullivan by Senator Padilla........    72

                                ANSWERS

Responses of Hany Farid to questions submitted by Chair Durbin...    74
Responses of Andrew Sullivan to questions submitted by Senator 
  Padilla........................................................    77

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Submitted by Chair Blumenthal:

    Arora, Saanvi, and Ani Chaglasian, letter, February 10, 2023.    86
    `` `Carol's Journey': What Facebook knew about how it 
      radicalized users,'' NBC News, October 26, 2021............    88
    ``Deconstructing the terrorism discourse on social media,'' 
      European Commission, April 17, 2019........................    98
    Email correspondence from Nitsana Darshan-Leitner to Eric 
      Schnapper et al., subject: ``Hearing,'' March 05, 2023.....    99
    ``Facebook recommended QAnon groups to a new user within 2 
      days of joining the platform, according to a new 
      whistleblower report,'' Insider, Oct 25, 2021..............   101
    ``How ISIS Uses Social Media for Recruitment,'' Canadian 
      Forces College, 2020.......................................   106
    ``ISIS's Use of Social Media Still Poses a Threat to 
      Stability in the Middle East and Africa,'' The Rand Blog, 
      December 11, 2018..........................................   132
    ``The Islamic State's Use of Online Social Media,'' Military 
      Cyber Affairs, January 2016................................   133
    ``Media Warfare and the Discourse of Islamic Revival: The 
      Case of the Islamic State (IS),'' European Commission, 
      January 31, 2019...........................................   143
    ``A new group of TikTok-savvy Palestinian fighters tests 
      Israeli forces in the West Bank,'' NPR, October 26, 2022...   158
    ``Taking a TikTok journey straight to the Lions' Den,'' 
      CTech, October 31, 2022....................................   164
    ``The Use of Social Media by United States Extremists,'' 
      National Consortium for the Study of Terrorism and 
      Responses to Terrorism, research brief.....................   167
    ``Use of social networks among the Palestinian public - Data 
      and insights,'' Information Center for Intelligence and 
      Terrorism name after General Meir Amit at the Intelligence 
      Heritage Center--MLM.......................................   177
    ``What is to blame for the involvement of Palestinian kids in 
      terror attacks?'', Jerusalem Post, February 16, 2023.......   184

Submitted by Senator Padilla:

    Access Now, et al., letter, March 8, 2023....................   188









 
                        PLATFORM ACCOUNTABILITY:
                          GONZALEZ AND REFORM

                              ----------                              


                        WEDNESDAY, MARCH 8, 2023

                      United States Senate,
               Subcommittee on Privacy, Technology,
                                       and the Law,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice at 2:05 p.m., in 
Room 226, Dirksen Senate Office Building, Hon. Richard 
Blumenthal, Chair of the Subcommittee, presiding.
    Present: Senators Blumenthal [presiding], Klobuchar, 
Hirono, Padilla, Hawley, and Blackburn.
    Also present: Chair Durbin.

         OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
          A U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Chair Blumenthal. The Senate Subcommittee on Privacy, 
Technology, and Law is convened. We are a Subcommittee of the 
Judiciary Committee and the Chairman of our Committee is with 
us today. I want to thank all of our panel for being here, all 
of the members of the audience who are attending, and my 
Ranking Member, colleague, partner in this effort, Senator 
Hawley. I'm going to turn first to the Chairman because he has 
an obligation on the floor for some opening remarks. We're very 
pleased that he's with us today.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. Senator Blumenthal and Senator Hawley, thank 
you for holding this important meeting. We had a rather 
historic meeting of the Senate Judiciary Committee just a few 
weeks ago. I think everybody agreed on subject matter of the 
hearing. I don't know when that's ever happened, at least 
recently. And it was encouraging.
    The hearing considered the subject of protecting kids 
online. One of the witnesses we heard from, Kristin Bride, a 
mother with a son who died by suicide after he was mercilessly 
bullied on an anonymous messaging app. There were several other 
mothers in attendance carrying color photos of their kids who 
suffered similar heartbreak.
    In addition to tragically losing children, these mothers 
had something else in common. They couldn't hold the online 
platform that played a role in their child's death accountable. 
The reason, Section 230, well known to everyone who's taken a 
look at this industry.
    Coincidentally, after that hearing, I had a meeting with 
the administrator of the Drug Enforcement Administration, Anne 
Milgram. She described for me how illegal and counterfeit drugs 
are sold over the internet to kids, often with devastating 
results. When I asked her what online platforms were doing to 
stop it, she said very little, and refusing to cooperate with 
her agency to even investigate.
    I asked her, ``How do they deliver these drugs? By mail?'' 
Oh, no. By valet service. They bring boxes of these counterfeit 
drugs, deadly drugs, leave them on the front porch of the homes 
of these kids. Imagine this, we're talking about a medium that 
is facilitating that to occur in America. These platforms know 
these drug transactions are happening. What are they doing 
about them? Almost nothing. Why? Section 230.
    In our hearing last month, there seemed to be a consensus 
emerging, Democrats and Republicans, that we've got to do 
something to make Section 230 make sense. Something needs to 
change so online platforms have an incentive to protect 
children, and if they don't, they should be held liable in 
civil actions.
    I look forward to hearing from the witnesses today. I'm 
sorry I can't stay because I have major on the floor to 
consider in a few minutes, but I will review your testimony, 
and thank you for your input. Thank you, Mr. Chairman, Ranking 
Member.
    Chair Blumenthal. Thanks very much, Senator Durbin. I think 
it is a mark of the importance and the imminence of reform that 
Senator Durbin is here today. His leadership led to the hearing 
that we had just a couple weeks ago, showing the harms, really 
desperate, despicable harms that can result from some of the 
content on the internet and the need to hold accountable the 
people who put it there. And that's very simply why we are here 
today.
    I want to thank Senator Durbin for his leadership. Also, 
Senator Coons who preceded me as head of this Subcommittee. 
There are certainly challenging issues before us on this 
Subcommittee from reining in Big Tech to protecting our civil 
rights in an era of artificial intelligence.
    And I am enormously encouraged and energized by the fact 
that we have bipartisan consensus on this first hearing. Not 
always the case in the Judiciary Committee, not always the case 
in the United States Senate, but I'm really appreciative of 
Senator Hawley's role, especially his amicus brief to the 
United States Supreme Court in Gonzalez.
    The comments by the Solicitor General in that case, some of 
the comments by the Justices, we have no ruling yet, but I 
think what we are seeing is, as Senator Durbin said, an 
emerging consensus that something has to be done.
    So here's a message to Big Tech, reform is coming. Can't 
predict it'll be in the next couple weeks or the next couple 
months, but if you listen, you will hear a mounting consensus 
and a demand from the American public that we need to act in a 
bipartisan way.
    Section 230 dates from a time when the internet was a 
young, nascent startup kind of venture that needed protection 
if it tried to weed out the bad stuff. And now it's used to 
defend keeping the bad stuff there. This so-called shield has 
been long outdated as we enter an era of algorithms and 
artificial intelligence, which were unknown and perhaps 
unimaginable on the scale that they now operate when Section 
230 was adopted.
    And the caselaw--and I've read it, the Gonzalez Court 
addressed it--simply doesn't provide the kind of remedy that we 
need quickly enough and thoroughly enough. I think that the 
time when the internet could be regarded as a kind of neutral 
or a passive conduit has long since passed. Obviously, we need 
to look at platform design, the business operations, the 
personalization of algorithms, recommendations that drive 
content.
    And we've seen it particularly with children. Toxic content 
driven by algorithms in a very addictive way toward children 
with this overwhelming protection that is accorded by Section 
230 to the tech platforms that are responsible and need to be 
held accountable.
    Section 230 actually was designed to promote a safer 
internet. Plainly, it's doing the opposite right now. And what 
we have heard graphically as Senator Durbin described it again 
and again and again at hearings in the Commerce Committee, the 
Subcommittee on Consumer Protection, which I chaired, hearing 
from the whistleblower, Frances Haugen, documents that we've 
seen from Facebook and the victims and survivors, Mrs. Bride, 
who lost her son, Carson.
    Anastasia, who wrote me along with another young woman, 
Saanvi Arora and Anastasia Chaglasian, they started a petition 
that received 30,000 signatures from Americans across the 
Nation after they were victimized. Pictures of their sexual 
abuse repeatedly transmitted on anonymous platforms. And I'm 
going to put their letter to me in the record without 
objection.
    [The information appears as a submission for the record.]
    Chair Blumenthal. But the point is, we've seen the harms. 
We need to take action to address those harms. And we've also 
seen harms, Section 230 has shielded platforms like Craigslist 
when they hosted housing ads that openly proclaimed no 
minorities. Section 230 has immunized Facebook when its own 
advertising tools empowered and encouraged landlords to exclude 
racial minorities and people with disabilities. For any other 
company, these would be violations of the Fair Housing Act, but 
Section 230 shut the door on accountability for them and in so 
many other instances.
    The case history on Section 230 is clear. When Big Tech 
firms invoke it, those being denied justice are often women, 
people of color, members of the LGBTQ community or children, 
and the victims and survivors of sexual abuse. So this hearing 
is very simply part of a broader effort to reform Section 230.
    We've seen some of the models and the frameworks that are 
possible for reform. I'm not taking sides right now, but by the 
end of these hearings, I hope to do so, and this enterprise is 
not new for me. Fifteen years ago when I was Attorney General 
dealing with Myspace and Craigslist and many of the same issues 
that we're confronting today, I said to my staff, ``We should 
repeal Section 230.'' And they came down on me like a house of 
bricks and said, ``Whoa, you can't repeal Section 230. That's 
the Bible of the internet.''
    Well, it's not the Bible of the internet. It's not the 10 
Commandments that have been handed down. It is a construct that 
is now outdated and outmoded and needs reform. And I'm really 
so thankful to have the leadership of Senator Hawley, who is 
also a longstanding champion of survivors and victims of sexual 
abuse and other harms. And to his great credit, a former State 
attorney general. Senator Hawley.

             OPENING STATEMENT OF HON. JOSH HAWLEY,
           A U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator Hawley. Thank you very much, Senator Blumenthal. 
Thank you, Mr. Chairman, for being here as well. Thanks to all 
the witnesses for making, in some cases, the long trek here. I 
just want to add a few remarks. I am delighted that the first 
meeting of this Subcommittee is focusing on what is, I think, 
maybe the critical issue in this space, and that is Section 
230.
    And I want to amplify something that Senator Blumenthal 
just said, which is that Section 230, as we know it today, is 
not only outmoded, it's not only outdated, it's really 
completely unrecognizable from what Congress wrote in the 
1990s. I mean, let's be honest, the Supreme Court heard 
arguments to this effect just a few weeks ago, but the Section 
230, as we know it today, has been almost completely rewritten 
by courts and other advocates, usually at the behest of Big 
Tech, the biggest, most powerful corporations, not just now, 
but in the history of this country.
    They have systematically rewritten Section 230. And listen, 
I hope that the United States Supreme Court will do something 
about it because frankly, they share some of the blame for 
this. And I hope in the Gonzalez case, they'll begin to remedy 
that. But whatever the case may be there, it is incumbent upon 
Congress to act. We wrote Section 230 originally. We should fix 
it now. And I welcome these hearings to collect evidence, to 
hear from experts such as those who are before us today about 
the paths forward.
    From my own view, I think that some of the common ground 
that Senator Blumenthal mentioned and that the Chairman 
mentioned that we've heard in our hearings recently really 
boils down to this: It really is time to give victims their day 
in court. What could be more American than that? Every American 
should have the right, when they have been injured, to get into 
court, to present their case, to be heard, and to try to be 
made whole.
    Section 230 has prevented that for too many years. And I 
would hope that if we could agree on nothing else, we could 
agree on that basic, fundamental, dare I say, fundamentally 
American approach. And I hope that that's something that we'll 
be able to explore together.
    Now, I just note that progress on reforming Section 230 has 
been very slow. As a Republican, I would love to blame that on 
my Democrat colleagues, but the sad fact of the matter is 
Republicans are just as much to blame, if not more. And my own 
side of the aisle when it comes to vindicating the rights of 
citizens to get into court, to have their day in court, has 
often been very, very slow to endorse that approach and very, 
very wary.
    But I think that the time has come to say that we must give 
individuals, we must give parents, we must give kids and 
victims that most basic right. And I hope that this 
Subcommittee and the Committee as a whole, the Judiciary 
Committee as a whole, will prove in this Congress that real 
bipartisan action with real teeth is possible. And we will see 
real reform for America's families and children. Thank you, Mr. 
Chairman.
    Chair Blumenthal. Thanks, Senator Hawley. I'm going to 
introduce the panel. And then, as is our custom, I will swear 
you in and ask you for your opening remarks.
    Dr. Mary Anne Franks is an internationally recognized 
expert on the intersection of civil rights and technology. 
She's a professor of law and the Michael Klein Distinguished 
Scholar Chair at the University of Miami, and the president and 
legislative and tech policy director of this Cyber Civil Rights 
Initiative, a nonprofit organization dedicated to combating 
online abuse and discrimination.
    Professor Hany Farid is a professor of computer science at 
UC, Berkeley. He specializes in image and video analysis and 
developing technologies to mitigate online harms, ranging from 
child sexual abuse to terrorism and deepfakes.
    Ms. Jennifer Bennett is a principal at Gupta Wessler, where 
she focuses on appellate and Supreme Court advocacy on behalf 
of workers, consumers, and civil rights plaintiffs. She 
recently argued and won Henderson v. Public Data, a Section 230 
appeal before the Fourth Circuit that established a framework 
for interpreting the statute that has for the first time 
garnered widespread support.
    Andrew Sullivan is the president and CEO of the Internet 
Society, a global nonprofit organization founded to build, 
promote, and defend the internet. Mr. Sullivan has decades of 
experience in the internet industry having worked to enhance 
the internet's value as an open global platform throughout his 
career.
    Finally, Professor Eric Schnapper is professor of law at 
the University of Washington School of Law in Seattle. He 
recently argued the cases of Gonzalez v. Google and Twitter v. 
Taamneh before the United States Supreme Court. Before joining 
the University of Washington faculty, he spent 25 years as an 
assistant counsel for the NAACP Legal Defense and Educational 
Fund in New York City, and he also worked for Congressman Tom 
Lantos. He is a member of the Washington Advisory Committee of 
the United States Commission on Civil Rights. I assume that 
your appearance today will not be as arduous as arguing two 
Supreme Court cases back to back.
    Would the witnesses please stand and raise your right hand?
    [Witnesses are sworn in.]
    Chair Blumenthal. Thank you.
    Senator Whitehouse. Mr. Chairman, does this mean that for 
the first time you're not the person in the room who's argued 
the most Supreme Court decisions?
    Chair Blumenthal. Well, I've done four, but I think Mr. 
Schnapper may exceed my record in total. I'm not sure. Let's 
begin with Dr. Franks.

STATEMENT OF MARY ANNE FRANKS, PROFESSOR OF LAW AND THE MICHAEL 
   R. KLEIN DISTINGUISHED SCHOLAR CHAIR, UNIVERSITY OF MIAMI 
                 SCHOOL OF LAW, MIAMI, FLORIDA

    Professor Franks. Thank you. In 2019, nude photos and 
videos of an alleged rape victim were posted on Facebook by the 
man accused of raping her. The posting of non-consensual 
intimate imagery is prohibited by Facebook's terms of service. 
The company's operational guidelines stipulate that such 
imagery should be removed immediately and that the account of 
the user who has posted it should be deleted.
    However, Facebook moderators were blocked from removing the 
imagery for more than 24 hours, which allowed the material--
which the company itself described in internal documents as 
revenge porn--to be reposted 6,000 times and viewed by 56 
million Facebook and Instagram users leading to abuse and 
harassment of the woman.
    The reason why, according to internal documents obtained by 
the Wall Street Journal, was that the man who had posted the 
non-consensual pornography was a famous soccer star. That is, 
this was no mere oversight, but rather an intentional decision 
by the company to make an exception for an elite user. This was 
in accordance with a secret Facebook policy known as cross-
check, which grants politicians, celebrities, and popular 
athletes special treatment for violation of platform rules.
    The public only knows about this policy because of 
whistleblowers and journalists who also revealed Meta's full 
knowledge of Facebook's role in genocide and other violence in 
developing countries, the harmful health effects of Facebook 
and Instagram use on young users, and the corrosive and anti-
democratic impact of misinformation and disinformation 
amplified through its platforms.
    The law that is currently interpreted to allow Facebook and 
other tech platforms to knowingly profit from harmful content 
was passed by Congress in 1996 as a Good Samaritan law for the 
internet. Good Samaritan laws provide immunity from civil 
liability to incentivize people to help when they are not 
legally obligated to do so.
    The title of the operative provision of this law and the 
text of Section 230(c)(2) reflect the 1996 House Committee 
reports description of the law as providing, quote, ``Good 
Samaritan protections from civil liability for providers or 
users of an interactive computer service for actions to 
restrict or to enable the restriction of access to 
objectionable online material.''
    How did a law that was intended as a shield for platforms 
who restrict harmful content become a sword for platforms that 
promote harmful content? By ignoring the legislative purpose, 
history, and the statute's language as a whole to focus on a 
single sentence that reads, ``No provider or user of an 
interactive computer service shall be treated as the publisher 
or speaker of any information provided by another information 
content provider.''
    The use of the words publisher or speaker, which are terms 
of art from defamation law, make clear that this provision bars 
certain types of defamation and defamation-like claims that 
attempt to impose liability on people simply for repeating or 
providing access to unlawful content.
    But many courts have instead interpreted this sentence to 
grant unqualified immunity to platforms against virtually all 
claims and for virtually all content. An interpretation that 
not only destroys any incentive for platforms to voluntarily 
restrict content, but in fact provides them with every 
incentive to encourage and amplify it.
    The Supreme Court, in taking up Gonzalez v. Google, has the 
opportunity to undo more than 20 years of the preferential and 
deferential treatment of the tech industry that has resulted 
from the textually unsupported and unintelligible reading of 
the statute. It was an encouraging sign during oral argument 
that many Justices pushed back against the conflation of a lack 
of community with the imposition of liability and seemed 
unconvinced by claims that the loss of preemptive, unqualified 
immunity would destroy the tech industry.
    As Justice Kagan observed, ``Every other industry has to 
internalize the costs of its conduct. Why is it that the tech 
industry gets a pass?'' Supporters of the Section 230 status 
quo respond that the tech industry is special because it is a 
speech-focused industry. This claim is disingenuous for two 
reasons.
    First, Section 230 is invoked as a defense for a wide range 
of conduct, not only speech. And second, other speech-focused 
industries do not enjoy the supercharged immunity that the tech 
industry claims is essential for its functioning.
    Colleges and universities are very much in the business of 
speech, but they can be sued. As can book publishers and book 
distributors, radio stations, newspapers, and television 
companies. Indeed, The New York Times and Fox News have both 
recently been subjected to high-profile defamation lawsuits.
    The newspaper and television industries have not collapsed 
under the weight of potential liability, nor can it be 
plausibly claimed that the potential for liability has 
constrained them to publish and broadcast only anodyne, non-
controversial speech.
    There's no guarantee that the Supreme Court will address 
the Section 230 problem directly or in a way that would 
meaningfully restrict its unjustifiably broad expansion. And 
so, Congress should not hesitate to take up the responsibility 
of amending Section 230 to clarify its purpose and foreclose 
interpretations that render the statute internally incoherent 
and allow the tech industry to inflict harm with impunity.
    At a minimum, this would require amending the statute to 
make clear that the law's protections only apply to speech, and 
to make clear that platforms that knowingly promote harmful 
content are ineligible for immunity. Thank you.
    [The prepared statement of Professor Franks appears as a 
submission for the record.]
    Chair Blumenthal. Thank you. Thank you very much, Dr. 
Franks. Professor Farid.

 STATEMENT OF HANY FARID, PROFESSOR, SCHOOL OF INFORMATION AND 
  ELECTRICAL ENGINEERING AND COMPUTER SCIENCE, UNIVERSITY OF 
           CALIFORNIA, BERKLEY, BERKELEY, CALIFORNIA

    Professor Farid. Chair Blumenthal, Ranking Member Hawley, 
and Members of the Subcommittee, thank you. In the summer of 
2017, three Wisconsin teenagers were killed in a high-speed car 
crash. At the time of the crash, the boys were recording their 
speed of 123 miles an hour on Snapchat's speed filter.
    Following the strategy, the parents of the passengers sued 
Snapchat claiming that the product which awarded trophies, 
streaks, and social recognition was negligently designed to 
encourage dangerous high-speed driving. In 2021, the Ninth 
Circuit ruled in favor of the parents and reversed a lower 
court's ruling that had previously emphasized that the speed 
filter as creating third-party content, thus finding that 
Snapchat was not deserving of 230 protection.
    Section 230, of course, immunizes platforms and that they 
cannot be treated as a publisher or speaker of third-party 
content. In this case, however, the Ninth Circuit found the 
plaintiff's claims did not seek to hold Snapchat liable for 
content, but rather for a faulty product design that 
predictably encouraged dangerous behavior. This landmark case, 
Lemmon v. Snap, made a critical distinction between a product's 
negligent design and the underlying user-generated content, and 
this is going to be the theme of my opening statements here.
    Frustratingly, over the past several years, most of the 
discussion of 230, and most recently in Gonzalez v. Google, 
this fundamental distinction between design and content has 
been overlooked and muddled. At the heart of Gonzalez is 
whether 230 immunizes YouTube when they not only host third-
party content, but make targeted recommendations of content.
    Google's attorneys argued that fundamental to organizing 
the world's information is the need to algorithmically sort and 
prioritize content. In this argument, however, they 
conveniently conflate a search feature with a recommendation 
feature. In the former, the algorithmic order of content is 
critical to the function of a Google or a Bing search.
    In the latter, however, YouTube's ``watch next'' and 
``recommended for you'' features, which lie at the core of 
Gonzalez, are a fundamental design decision that materially 
contributes to the product safety. The core functionality of 
YouTube as a video-sharing site is to allow users to upload a 
video, allow other users to view the video, and possibly search 
videos.
    The basic functionality of recommending content--of which 
70 percent of watched videos on YouTube are recommended--is 
done in order to increase user engagement and, in turn, ad 
revenue. It is not a core functionality. YouTube has argued 
that the recommendation algorithms are neutral and that they 
operate the same way as it pertains to a cat or an ISIS video. 
This means then that because YouTube can't distinguish between 
a cat and an ISIS video, they've negligently designed their 
recommendation engine.
    YouTube has also argued that with 500 hours of video 
uploaded every minute, they must make decisions on how to 
organize this massive amount of content. But again, searching 
for a video based on a creator or a topic is distinct from 
YouTube's design of a recommendation feature whose sole purpose 
is to increase YouTube's profits by encouraging users to binge-
watch more videos.
    In so doing, the recommendation feature prioritizes 
increasingly more bizarre and dangerous rabbit holes full of 
extremism, conspiracies, and dubious alternate facts. Similar 
to Snapchat's design, a decision to create a speed filter, 
YouTube chose to create this recommendation feature, and they 
either knew or should have known that it was leading to harm.
    By focusing on 230 immunity from user-generated content, we 
are overlooking product design decisions, which predictively 
have allowed and even encouraged terror groups like ISIS to use 
YouTube to radicalize, recruit, and glorify global terror 
attacks.
    While much of the debate around 230 has been highly 
partisan--on this, Senator Hawley, we agree--it need not be. 
The core issue is not one of over or under moderation, but 
rather one of a faulty and an unsafe product design. As we 
routinely do in the offline world, we can insist that the 
technology in our pockets are safe.
    So, for example, we've done a really good job of making 
sure that the battery powering our device doesn't explode and 
kill us, but we've been negligent in ensuring that the software 
running on device is safe. The core tenets of 230, limited 
liability for hosting user-generated content, can be protected 
while insisting, as in Lemmon v. Snap, the technology that is 
now an inextricable part of our lives be designed in a way that 
is safe.
    This can be accomplished by clarifying that 230 is intended 
to protect platforms from liability based exclusively on their 
hosting of user-generated content and not as has been expanded 
to include a platform's design features that we now know is 
leading to many of the harms that Senator Blumenthal opened 
with at the very beginning. Thank you.
    [The prepared statement of Professor Farid appears as a 
submission for the record.]
    Chair Blumenthal. Thank you very much, Professor. Ms. 
Bennett.

         STATEMENT OF MS. JENNIFER BENNETT, PRINCIPAL,
         GUPTA WESSLER PLLC, SAN FRANCISCO, CALIFORNIA

    Ms. Bennett. Good afternoon. Thank you for the opportunity 
to testify before you today. I'm going to focus on, Senator 
Blumenthal mentioned this case, Henderson v. Public Data, and 
I'm going to focus on that case. And the reason for focusing on 
that case is because if you look at the transcript in Gonzalez 
of the oral argument, what you'll see is that the parties there 
disagreed about virtually everything, the facts, the law, 
whether the sky is blue and the grass is green, everything.
    The one thing, the one place they found common ground was 
that this case, Henderson, got Section 230 right. And so in 
thinking about what Section 230 means, what it means, how it 
might be reformed, I think Henderson might be a good starting 
place. So what is this magical framework that gets Google and 
the people suing Google and the United States Government all on 
the same page?
    This framework has two parts, and it mirrors the two parts 
of 230 that people typically fight about. So part 1 addresses 
what does it mean to treat someone as a publisher? Because 
Section 230 says, ``We'll protect you from claims that treat 
you as a publisher of third-party content.'' But it doesn't say 
what that means.
    And what Henderson says is, ``Well, we know that publisher 
liability, what Section 230 is saying about publisher liability 
comes from defamation law.'' And in defamation law, what 
publisher liability means is holding someone liable for 
disseminating to third parties' content that's improper.
    So, for example, someone goes on Facebook, they say, 
``Jennifer Bennett is a murderer.'' I am not in fact a 
murderer, so I sue Facebook for defamation. That claim treats 
Facebook as a publisher. Because what it's saying is, 
``Facebook, you're liable because you've disseminated to third 
parties information that I think is improper.''
    On the other hand, say I apply for a job and the employer 
wants to find out some things about me so they go online and 
they buy a background check report about me, and the online 
background check company doesn't see if the employer got my 
consent. And so, I sue that company. I say the Fair Credit 
Reporting Act requires you to ask the employer if they have 
consent. You didn't do that.
    That claim, as Henderson holds, doesn't treat the company 
as a publisher. And the reason for that is that the claim 
doesn't depend on anything improper about the content. The 
claim says, ``You, company, were supposed to do something and 
you didn't do it.'' It's a claim based on the conduct of the 
company, not on content.
    So that's part 1 of the Henderson framework. A claim only 
treats someone as a publisher if it imposes liability for 
disseminating information to third parties, where the claim is 
that information is improper for some reason.
    Part 2 of the Henderson framework is what it means to be 
responsible for content. Because even if a claim treats someone 
as a publisher, Section 230 as written, offers no protection if 
they're responsible, even in part for the creation or the 
development of that content.
    And what Henderson says, and this is what a lot of courts 
have said actually, is that at the very least, if you 
materially contribute to what makes the content unlawful, then 
you're responsible and Section 230 should offer no protection 
to you.
    So to take a seminal example, say there's a housing 
website, and to post a listing on the housing website, the 
website requires you to pick certain races of people to which 
you'll offer housing. And so, there's a listing that says 
whites only. Someone sues the website and says, you're 
discriminating. It violates the Fair Housing Act.
    The website should have no protection in that case because 
the website materially contributed to what's unlawful about the 
posting. The website said you have to pick races of people who 
the listing should be available to. So that's part 2 of the 
Henderson framework, which is you're responsible for conduct, 
content rather, and you're outside the protection of Section 
230, even as it currently exists, if you created that content 
or materially contributed to what's unlawful about it.
    And I just want to end by noting that both parts of this 
framework depend on the same fundamental premise. And I think 
that's what's driving people's, you know, even Google's 
willingness to say this case is correct.
    And that fundamental premise is that Section 230 protects 
internet companies and internet users from liability when the 
claim is based solely on improper content that someone else 
chose to put on the internet, but it doesn't protect, and what 
it was never intended to protect, is to protect platforms from 
liability based on their own actions. Thank you, again. I look 
forward to any questions.
    [The prepared statement of Ms. Bennett appears as a 
submission for the record.]
    Chair Blumenthal. Thank you very much, Ms. Bennett. Mr. 
Sullivan.

STATEMENT OF MR. ANDREW SULLIVAN, PRESIDENT AND CHIEF EXECUTIVE 
          OFFICER, INTERNET SOCIETY, RESTON, VIRGINIA

    Mr. Sullivan. Good afternoon, Chair Blumenthal, Ranking 
Member Hawley, and distinguished Members of this Subcommittee. 
Thank you for this opportunity to appear before you today to 
discuss platform accountability.
    I work for the Internet Society. We are a U.S. incorporated 
public charity founded in 1992. Some of our founders were part 
of the very invention of the internet. We have headquarters in 
Reston, Virginia, and in Geneva. Our goal is to make sure that 
the internet is for everyone. Making sure that is possible is 
what brings me here before you today.
    The internet is in part astonishing because it is about 
people. Many communications technologies either allow 
individuals only to speak to one another, or they allow one 
central source, often corporate-controlled, to address large 
numbers of people at one time. The internet, by contrast, 
allows everyone to speak to anyone. That can sometimes be a 
problem. I too am distressed by the serious harms that come 
through the internet and that we have heard about today.
    But I also know the benefits that the internet brings, 
whether that be for isolated people in crisis who find the 
health that they need online, or to those who learn a new 
useful skill through freely shared resources, or to still 
others who are led to new insights or devotions through their 
interactions with others. People interact with one another on 
the internet and Congress noted this important feature in 
Section 230 with its emphasis on how the internet is an 
interactive computer service.
    Yet the internet is a peculiar technology because it is not 
really a single system. Instead, it is made up of many separate 
participating systems, all operating independently. The 
independent participants, including ordinary people just using 
the internet, all use common technical building blocks without 
any central control. And when we put all these different 
systems together, we get the internet.
    Section 230 emerged just as the internet was ceasing to be 
a research project and turning into the important communication 
medium it is today. But even though Congress was facing 
something strange and new, the legislators understood these two 
central features. The interactive nature meant that people 
could share in ways other technologies hadn't enabled. And the 
sheer number of participants meant that each of them needed to 
be protected from liability for things that other people said. 
The internet has thrived as a result. And this is what concerns 
me about proposals either to repeal Section 230 or to modify it 
substantially.
    Outright repeal would be a calamity as online speech would 
quickly be restricted from fear of liability. Even the trivial 
things, retweeting a news article, sharing somebody else's 
restaurant review would incur too great a risk that somebody 
would say something and make you liable. So anyone operating 
anything on the internet would rationally restrict such 
behaviors.
    Even something narrowly aimed at the largest corporate 
players presents a risk to the internet. In a highly 
distributed system like this, you can try something without 
anyone else being involved, but if some players have special 
rules, it is important that everyone else not be subject to 
those rules by accident, because those others don't have the 
financial resources of the special players.
    It would be bad to create a rule that only the richest 
companies could afford to meet. It would give them a permanent 
advantage over potential new competitors. Issues of the sort 
Americans are justly worried about naturally inspire a 
response. It is entirely welcome for this Subcommittee to be 
examining these issues today.
    But because Section 230 protects the entire internet, 
including the variability of individuals to participate in it, 
it is a poor vehicle to address admittedly grave and insidious 
problems that are nevertheless caused by a small subset of 
those online. This is not to say that Congress is powerless to 
address these important social problems.
    Approaches that give rights to all Americans, such as 
baseline privacy legislation, could start to address some of 
the current lack of protections in the online sphere. Given the 
concerns about platform size, competition policy is another 
obvious avenue to explore.
    We at the Internet Society stand ever willing to consult 
and provide feedback on any proposals to address social 
problems online. I thank you for the opportunity to speak to 
you today. I look forward to answering any questions you have, 
and of course, we would be delighted to engage with any of your 
staff on specific proposals. Thank you.
    [The prepared statement of Mr. Sullivan appears as a 
submission for the record.]
    Chair Blumenthal. Thanks, Mr. Sullivan.
    Professor Schnapper.

 STATEMENT OF ERIC SCHNAPPER, PROFESSOR OF LAW, UNIVERSITY OF 
         WASHINGTON SCHOOL OF LAW, SEATTLE, WASHINGTON

    Professor Schnapper. Thank you. Senator Durbin and----
    Chair Blumenthal. You might turn on your microphone.
    Professor Schnapper. Senator Durbin and yourself, Senator 
Blumenthal, you put your finger on the core problem here, which 
is that Section 230 has removed the fundamental incentive that 
the legal system ought to provide to avoid doing harm. And the 
consequence of that statute has been precisely as Senator 
Hawley described, that the right of Americans to obtain redress 
if they've been harmed by knowing misconduct has been 
eviscerated.
    Now, part of the concern that led to the adoption of the 
statute was that internet companies wouldn't know what was on 
their websites, but there's--we have decades of experience with 
the fact that they know exactly what's going on and they don't 
do anything about it. And the presence of terrorist materials 
on their websites, and the fact that those materials are being 
recommended has long been known.
    Federal officials have been raising this with the internet 
companies for 18 years. In 2005, Senator Lieberman, whom you 
know well, wrote a letter to these companies and asked them to 
do something about terrorist materials on their websites.
    Since then, Members of the other body and of the 
administration have made that point publicly. There have been 
dozens of published articles about the use of the websites by 
terrorist organizations. I brought a sample today, a small 
fraction. I mean, I'm happy to provide the staff with other 
examples.
    Chair Blumenthal. We'll ask that those materials be entered 
in the record without objection.
    [The information appears as submissions for the record.]
    Professor Schnapper. You may want to see how many there are 
before you put them all on the record.
    [Laughter.]
    Chair Blumenthal. We have a big record.
    Professor Schnapper. The terrorist attacks were so rooted 
in what was going on in the internet that when there was a rash 
of terrorist attacks in the state of Israel, they were known as 
the Facebook intifada. And complaints were made to the social 
media companies without effect.
    In January 2015, the problem was so serious that there was 
a meeting with internet executives in which the representatives 
of the Federal Government were the Attorney General, the 
Director of the FBI, the Director of National Intelligence, and 
the White House Chief of Staff and I urge the Committee to ask 
for a readout of that meeting and what those companies were 
told.
    Most recently, in the Twitter litigation, a group of 
retired generals filed a brief describing the critical role 
that social media had played in the rise of ISIS. And again, I 
commend that brief to you. I think it's extremely informative 
of their informed military judgment about the consequences of 
what's been happening.
    The response of social media to this problem has often been 
indifferent and sometimes deeply irresponsible. In August and 
September 2014, two American journalists were murdered by ISIS. 
They were brutally beheaded and the killings were videotaped.
    When Twitter was called upon to stop publicizing those 
types of events, an official commented, ``One man's terrorist 
is another man's freedom fighter.'' That illustrates how 
fundamentally wrong the status of the law is today. And there's 
a good account of other comments like that from social media in 
a brief that was filed by the Concerned Women for America, 
which describes efforts and responses of that kind.
    What we have learned from the past 25 years is that 
absolute immunity can breed absolute irresponsibility. Now, we 
understand that private corporations exist to make a profit, 
but they also have obligations to the rest of the country and 
to your constituents to be concerned about the harms they can 
cause. Google and Meta have made billions of dollars since the 
enactment of Section 230, and Twitter may yet turn a profit. 
But those firms have a long way to go before they emerge from 
moral bankruptcy. Thank you.
    [The prepared statement of Professor Schnapper appears as a 
submission for the record.]
    Chair Blumenthal. Thank you, Professor Schnapper. You 
argued before the United States Supreme Court. I think it's 
pretty fair to say that the Court was struggling with many of 
these issues. And Justice Kagan said, quote, ``Every other 
industry has to internalize the costs of misconduct. Why is it 
that the tech industry gets a pass? A little bit unclear,'' end 
quote.
    She went on to say, ``On the other hand, I mean, we're a 
court. We really don't know about these things. You know, we 
are not like the greatest experts on the internet.'' That 
became clear, I think, in the course of the argument, but it 
also emphasizes the importance of what we're doing here. 
Because, ultimately, my guess is that the Court will turn to 
Congress.
    But I think it's also worth citing a remark by Chief 
Justice Roberts when he said, ``The videos,'' I'm quoting, 
``just don't appear out of thin air. They appear pursuant to 
the algorithms,'' end quote. The Supreme Court understands that 
these videos, the content very often is driven, it's 
recommended, it's promoted, it's lifted up, sometimes in a very 
addictive way to kids. And some of it absolutely abhorrent, to 
which they have been, as you put it Professor Schnapper, 
indifferent or downright irresponsible.
    And let me just make clear, Mr. Sullivan, we are not 
denying the benefits of the internet that--important benefits 
in interactive communication and the large number of 
participants. But the cases that have begun to make a start 
toward reining in Section 230: Henderson, described by Ms. 
Bennett, but before it, Roommates and Lemmon, both cases that 
try to do carve-outs in a way, Henderson, based on the material 
contribution case, show that we can establish limits without 
breaking the internet and without denying those benefits.
    Let me ask you, Ms. Franks, you know well, the material 
contribution test. In your testimony, you distinguish--you make 
another potential distinction or test involving information 
versus speech. I wonder if you could comment on the material 
contribution test, whether it is sufficient or whether we need 
a different kind of standard incorporated into the statute.
    Professor Franks. Thank you. As to the first question, I 
think the material contribution test would be useful if we had 
agreement about what it meant. And there seems to be a lot of 
uncertainty about how to apply that test. And so, I would be 
concerned that that test would be difficult to codify. What I 
think on the other hand would be--a promising approach would be 
to incorporate some standard along the lines of deliberate 
indifference to unlawful content or conduct.
    And to relate to the other part of your question, the 
reason why I've advocated for a specific amendment that would 
change the word ``information'' to ``speech'' is partly because 
a lot of the rhetoric that surrounds much of the defense of the 
status quo is that it's intended to defend free speech in some 
sort of general sense.
    That the tech industry is able to leverage that halo of the 
First Amendment to say, ``If it weren't for us, you wouldn't 
get to have any free speech.'' And I think that is suspect for 
many reasons, not least because the kind of speech that is 
often encouraged by these platforms and amplified is speech 
that silences and chills vulnerable groups.
    But it is also troubling because a lot of what gets invoked 
for Section 230's protections are not speech, or at least are 
not uncontroversially speech. And what I mean by this is that 
the Supreme Court has actually had to struggle over decades to 
figure out whether or not, for instance, an armband is speech 
or whether the displays of certain flags are speech. And, 
ultimately, the Supreme Court has been quite protective of 
certain types of conduct that they deem to be expressive.
    But usually, that takes some sort of explicit consideration 
and reflection as to, is this expressive enough conduct to get 
the benefit of First Amendment protection? And by putting the 
word information and allowing that to be interpreted incredibly 
widely, what companies are able to do is to short-circuit that 
kind of debate over whether or not what they're actually doing 
and what they're involved with is in fact speech.
    And I think that the clarification that it has to be speech 
and that the burden should have to be on companies to show that 
what they are at--what is at issue is in fact speech, I think 
that would be very helpful.
    Chair Blumenthal. Thank you. I have many more questions. 
I'm going to stay within the 5-minute limit so that as many as 
possible my colleague can ask their question. And turn now to 
Senator Hawley.
    Senator Hawley. Thank you very much, Mr. Chairman. 
Professor Schnapper, let me start with you. Thinking about the 
arguments that you made in both the Gonzalez case and then also 
in the Twitter case recently, in both of those cases, just to 
make sure that folks who are listening understand it, you were 
arguing on behalf of victims' families that were challenging 
the tech companies. Have I got that basically?
    Professor Schnapper. Yes, sir.
    Senator Hawley. So the Court, of course, is deliberating on 
this case as we don't know exactly what they're going to do. 
We'll have to wait to find out. But in both of these cases, 
help us understand your argument and set the scene for us. You 
are arguing that there is a difference. These tech companies 
have moved beyond merely hosting user-generated content to 
affirmatively recommending and promoting user-generated 
content. Is that right? Is that----
    Professor Schnapper. That's correct.
    Senator Hawley. So explain to us the significance of that. 
What's the difference between claiming immunity from not just 
hosting user-generated content, but now claiming immunity from 
promoting and affirmatively recommending and pushing user-
generated content?
    Professor Schnapper. Well, I think that's a distinction 
that derives from the wording of the statute. The statute seeks 
to distinguish between conduct of a website itself and 
materials that were simply created by others. And that 
distinction's clear on the face of the statute and the 
legislative history.
    Representative Lofgren at one point said, ``Holding 
internet companies responsible for defamatory material would be 
like holding the mailman,'' those are the language that we used 
at the time, ``responsible for delivering a plain, brown 
envelope.'' What's happening today is a far afield from merely 
delivering plain, brown envelopes. Internet companies are 
promoting this material, and they're doing it to make money.
    At the end of the day, social media companies make money by 
selling advertisements. The longer someone is online, the more 
advertisements they sell. And they have developed an 
extraordinarily effective and sophisticated system of 
algorithms to promote material and keep people online. And it 
sweeps up cat videos and it sweeps up terrorist materials and 
it sweeps in depictions of tragically underweight young women 
with dreadful consequences. So that's the distinction we were 
drawing.
    Senator Hawley. You mentioned algorithms and I think this 
is so important. Tell us why you think these algorithms which 
didn't generate themselves--the algorithms are designed by 
humans, they're designed by the companies. In fact, the 
companies regard them as very proprietary information. I mean, 
they protect them with their lives, the essence of their 
companies, their business model in many cases.
    Tell us what legal difference under Section 230 you think 
these algorithms and algorithmic promotion makes in these kind 
of cases. Why is that such a key factor?
    Professor Schnapper. Well, the algorithms are the method by 
which the companies achieve their goal of trying to interest a 
viewer in a particular video or text or whatever.
    And it's done in a variety of ways. It's done with auto-
play so that you turn on one video and you start to see a 
series of others that you never asked for. It's done through 
little advertisements. They're known as thumbnails, which 
appear on a YouTube page. It's done with feed and newsfeed, 
where Facebook, in the hopes of keeping you online more, 
proffers to you materials which they think you'll be interested 
in.
    Senator Hawley. So let me just ask you this. Does anything 
in the text of Section 230 as it was originally written, 
suggest, in your view, that platforms ought to get this really 
form of super immunity for promoting, taking other people's 
content, hosting it, promoting it, and in promoting it, making 
money off of it? I mean, does the statute immunize them from 
that? Does anything in the text support the super immunity in 
that way?
    Professor Schnapper. I spent a very long hour and a quarter 
trying to answer that question a few weeks ago. We think the 
text does draw that distinction. And that brings back so many 
happy memories that you ask that.
    [Laughter.]
    Professor Schnapper. So yes, that's our view, but we're not 
here to retry the case. But that is our view of the meaning of 
the statute, but it doesn't--it would be entirely appropriate 
for the Committee to clarify that.
    Senator Hawley. Let me just get to that point and finish my 
first round of questions with that. If Congress acts on this 
issue, what would be your recommendations for the best way to 
address this problem, from a policy legislative perspective? 
The problem you've identified in this case is about affirmative 
recommendations. How should we change the statute, reform the 
statute to address this problem?
    Professor Schnapper. I prefer not to try to frame 
legislative proposal as I sit here. It's complicated. And I'd 
be happy to work with your staff and my colleagues here, all of 
them, on that for you. But I think it would be inappropriate 
for me to start tossing out language as I sit here.
    Chair Blumenthal. Thanks, Professor Schnapper. Thanks, 
Senator Hawley. Senator Padilla.
    Senator Padilla. Thank you, Mr. Chair. I want to start out 
by asking consent to enter a letter into the record for more 
than three dozen public interest organizations, academics, 
legal advocates, and members of industry. A letter that notes, 
``In policy conversations, Section 230 is often portrayed by 
critics as a protection for a handful of large companies. In 
practice, it's a protection for the entire internet 
ecosystem.''
    Chair Blumenthal. Without objection, your letter is made a 
part of the record.
    [The information appears as a submission for the record.]
    Senator Padilla. Thank you. As we heard from the Supreme 
Court, this is a very thorny and nuanced issue, and we need to 
make sure that we treat it as such. Because of Section 230, we 
have an internet that is a democratizing force for speech, 
creativity, and entrepreneurship.
    Marginalized and underserved communities have been able to 
break free of traditional media gatekeepers and communities 
have leveraged platforms to organize for civil rights and for 
human rights. But it's also important to recognize that there 
is a horrifying conduct and suffering that we can and must 
address.
    My first question is for Professor Franks. In your 
testimony, you call for internet companies to more aggressively 
police their sites for harassment, hate speech, and other 
abhorrent conduct. And you recommend changes to Section 230 to 
compel that conduct. I share your concerns about the prevalence 
of this activity online.
    Now, that said, I also know that many marginalized 
communities rely on platforms to organize. Many of the same 
communities fall prey to the automated and inaccurate tools 
employed by companies to enforce their content moderation 
policies at scale. Is it possible to amend Section 230 in a way 
that does not encourage providers to over-remove lawful speech, 
especially by users from marginalized groups?
    Professor Franks. Thank you for this question. I'd first 
like to state that the current status quo where companies 
essentially have no liability for their decisions means that 
they can make any decisions that they would like, including 
ones that would harm disproportionately marginalized groups. 
And so, while it is encouraging to see that some platforms have 
not done so, some platforms have behaved responsibly, some have 
even made it a commitment to in fact amplify marginalized 
voices.
    These are all decisions that they are making essentially 
according to their own profit lines or according to their own 
motivations. And they can't really be relied upon as a 
guideline for how to run businesses that are so influential 
throughout our entire society.
    So when I suggest that Section 230 should be changed, I do 
want to, again, emphasize the distinction between immunity 
versus the presence of liability, which is to say Section 230 
presumably provides immunity from certain types of actions. 
That is not the same thing as saying you are responsible for 
those actions, if you are found not to have immunity.
    So my suggestions are really directed towards asking the 
industry the same question that Justice Kagan has asked, which 
is, Why shouldn't this industry be just as subject to the 
constraints of potential litigation as any other industry? So, 
not that they should be treated worse, but that they should be 
treated the same as many other industries.
    And that what that would hopefully do would be to 
incentivize these platforms to at least take some care in the 
way that they design their products and the way that they apply 
their policies, not to give them a sort of directive to say, 
this is how you have to do it, because you don't need a 
directive like that.
    Essentially, what you need is to allow companies to act in 
a certain way. And if they do so in a way that contributes to 
harm and there is a plausible theory of liability, they should 
have to be accounted for that. But nothing preemptively that 
should allow them to say, ``We are excused from this conduct, 
or that we are guilty of this conduct,'' but to simply change 
the incentive so that they have to sometimes worry about the 
possibility of being held accountable for their contribution to 
harm.
    Senator Padilla. Thank you. Next question is for Mr. 
Sullivan. Yesterday we had a Subcommittee hearing on 
competition policy that focused on digital markets. I want to 
make sure our legislative efforts to promote an open, 
innovative, equitable, and competitive internet harmonize with 
the platform accountability efforts here.
    Notably, in response to questioning during oral arguments 
in Google v. Gonzalez, Google's attorney acknowledged that 
while Google might financially survive liability for some 
proposed conduct presented as a hypothetical, smaller players 
most definitely could not. Can you speak to the role Section 
230 plays in fostering a competitive digital ecosystem?
    Mr. Sullivan. Yes. Thank you for the question, because this 
is the core of why the Internet Society is so interested in 
this. This is precisely what the issue is. If there are changes 
to 230, it is almost certain that the very largest players will 
survive it because they've amassed so much wealth. But a small 
player is going to have a very difficult time getting into that 
market, and that's one of the big worries that I have.
    You know, the internet is designed with no permanent 
favorites, and if we change the rules to make that favoritism 
permanent, it's going to be harmful for all of us.
    Senator Padilla. All right. Complex indeed. Thank you, Mr. 
Chair.
    Chair Blumenthal. Thanks, Senator Padilla. I'm going to 
call now on Senator Blackburn, who has been like Senator 
Hawley, a real leader in this area. She and I have co-sponsored 
the Kids Online Safety Act, which would provide real relief to 
parents and children, tools and safeguards they can use to take 
back control over their lives, and more transparency for the 
algorithms.
    And then we will turn to Senator Klobuchar, who has been 
such a steadfast champion on reforming laws involving Big Tech, 
her SAFE TECH bill, as well as the competition bills that you 
mentioned, Mr. Sullivan, that I've been very privileged to help 
her lead on. Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman. And this is one 
of those areas where we have bipartisan agreement. And as the 
Chairman said, I've worked on this issue of safety online for 
our children for quite a while, and for privacy for consumers 
when they're online, data security, as they've added more of 
their transactional life online.
    And, Ms. Bennett, I think I want to come to you on this. 
When I was in the House and Chairman of Comms and Tech there, I 
passed FOSTA/SESTA, and that has been implemented. And we had 
so much bipartisan support around that and finally got the 
language right and finally got it passed and signed into law.
    And some of the people that worked with us during that time 
have come to me recently and have said, ``Hey, the courts are 
trying to block some of the victims' cases based on 230 
language.'' And, Professor, I see you nodding your head also. I 
would like to hear from you what you see as what they have 
ascertained to be the problem, how we fix it if you think there 
is a fix, or is this just an excuse that you think they're 
using not to move these cases forward?
    Ms. Bennett. Sure. So I actually don't litigate FOSTA/SESTA 
cases. So if--was it Professor Franks who was nodding their 
head? I unfortunately don't know the answer to that for you, 
but I'd be happy to get it for you and could submit it 
afterwards.
    Senator Blackburn. I would appreciate that.
    Ms. Bennett. I'd be very happy to get that.
    Senator Blackburn. Go ahead, Professor.
    Professor Farid. Yes. I'm not the lawyer in the room. I'm 
the computer scientist, but I will say I've seen the same 
arguments being made. I want to come back to something earlier 
too because I think this speaks to your question, Senator, 
about small platforms. Small platforms have small problems. 
They don't have big problems.
    In fact, we have seen in Europe when we deploy more 
aggressive legislation, small companies comply quite easily. So 
I don't actually buy this argument that somehow regulation is 
going to squash the competition because they don't have big 
problems.
    Coming back to your question, Senator Blackburn, we also 
saw--and I think this is important as we're talking about 230 
reform--the same cries of, if you do this, you will destroy the 
internet. And it wasn't true. And so we can have modest 
regulation. We can put guardrails on the system and don't 
destroy the internet. I am seeing, by the way, and I don't know 
the legal cases, but I am seeing some pushback on enforcing 
SESTA/FOSTA and I think that's something Congress has to take 
up.
    Senator Blackburn. Well, I think you're right about that. 
That's probably another thing that we'll need to revisit and 
update that as we look at children's online privacy in COPPA 
2.0. Senator Markey, when we were in the house, led on that 
effort. And then, Senator Blumenthal and I have had the Kids 
Online Safety Act. Recently, Senator Ossoff and I introduced 
the REPORT Act, which would bolster NCMEC. And we think that's 
important to do. It would allow keeping CSAM info for a longer 
period of time so that these cases can actually be prosecuted.
    And it's interesting that one of the things we've heard 
from some of the platforms is that changes to Section 230 would 
discourage the platforms from moderating for things like CSAM, 
and I would be interested from the professor, really from each 
of you, on the panel, if you believe that reforming 230 would 
be a disadvantage, that it would make it more difficult to stop 
CSAM and some of this information because it's amazing to me 
that changing--they think changing the law, being more explicit 
in language, removing some of the ambiguous language in 230 
would be an incentive for the platforms to allow more rather 
than a disincentive. Ms. Franks, I'll start with you.
    Professor Franks. Thank you. I think the clarity that we 
need here about Section 230 and about this criticism is to say, 
which part of Section 230, because if the objection is that 
changes to (c)(1), which is really the part of the statute that 
is being used so expansively, if the argument is that some of 
those changes would make it harder and would disincentivize 
companies from taking these kinds of steps, I'd say that's 
absolutely false.
    (C)(2) quite clearly and expressly says this is exactly how 
you get immunity, is by restricting access to objectionable 
content. So what that means, of course, is that if it's a 
Section 230(c)(1) revision, you still have (c)(2)to encourage 
and to incentivize platforms to do the right thing.
    That being said, potential attacks on (c)(2) could in fact 
have an effect on whether or not companies are properly 
incentivized to take down objectionable material. But there is, 
of course, also the First Amendment that would come into play 
here, too. Because as private companies, these companies have 
the right to take down, to ignore, to simply not associate with 
certain types of speech if they so choose.
    Senator Blackburn. Okay. Professor, anything to add?
    Professor Farid. I'll point out a couple of things here. I 
was part of the team back in 2008 that developed technology 
called PhotoDNA that is now used to find and remove child 
sexual abuse material, CSAM. That was in 2008.
    That was after 5 years of asking, begging, pleading with 
the tech companies to do something about the most horrific 
content, and they didn't. It defies credibility that changes to 
230 is going to make them less likely to do this. They came 
kicking and screaming to do the absolute bare minimum, and 
they've been dragging their feet for the last 10 years as well. 
So I agree with Professor Franks. I don't think that this is 
what the problem is. I think they just don't want to do it 
because it's not profitable.
    Senator Blackburn. Thank you. Ms. Bennett, anything to add?
    Ms. Bennett. I will do what everybody should always do, 
which is agree with Professor Farid and Professor Franks, which 
is, you know, to the extent we're talking about (c)(1), it 
shouldn't have any impact. If you're keeping the good-faith 
defense for removing content, then that's still there. And 
nothing, no changes to (c)(1) should impact that.
    Senator Blackburn. Thank you. Mr. Sullivan.
    Mr. Sullivan. While I agree with everything that has just 
been said, the truth of the matter is that this illustrates why 
this is such a complicated problem, because when you open the 
legislation, the chances that only one little piece of it is 
going to get changed, not so high. And so, the problem that we 
see is, you know, Section 230 is what gives the platforms the 
ability to do that kind of moderation. It's what protects them. 
And therefore, you know, we're concerned about the potential 
of, you know, for that to change as well.
    Senator Blackburn. Okay. Professor?
    Professor Schnapper. I can't quite agree with everybody. 
It's gotten a little more complicated, but I think you can 
reform Section (c)(1) without creating disincentives to remove 
dangerous material. I think that's sort of a make-weight 
argument. I think you have to be careful about changes to 
(c)(2), although I understand that there are issues there.
    But I just may bring home a point, I guess it was Professor 
Farid made. Spending money to remove dangerous material from a 
website is not a profit center. And I think Elon Musk has 
explained that to the country in exquisite detail. If there are 
no financial incentives to avoid harm, you don't make money by 
doing it, and you've got to change those incentives.
    Senator Blackburn. I'm way over and I thank you for your 
indulgence.
    Chair Blumenthal. Thanks a lot, Senator Blackburn. Senator 
Klobuchar.
    Senator Klobuchar. Oh, thank you very much. And thank you 
to both you, Chair Blumenthal, and Senator Hawley for holding 
this hearing, Senator Blackburn for her good work in this area. 
So I was thinking Section 230 was enacted back in 1996. 
Probably there's just one or two remaining Members that were 
involved in leading that bill when we had dial-up modems 
accessing CompuServe. That's what we're dealing with here.
    To say that the internet of 2023 is different from what 
legislators contemplated in 1996 is a drastic understatement. 
And yet, as I said at our Antitrust Subcommittee hearing 
yesterday, the largest dominant digital platforms have stopped 
everything that we have tried to do to update our laws to 
respond to the issues we are seeing from privacy to 
competition.
    And like Senator Blumenthal, I--with the exception of the 
human trafficking that I'd been involved in early on--I was not 
crying for major changes to Section 230 either at the 
beginning. And part of what's brought me to this moment is the 
sheer opposition to every single thing we try to do.
    Even when we tried, Lindsey Graham and I, before that 
Senator McCain did the Honest Ads Act to put disclaimers and 
disclosures, we got initial objection and then eventually some 
support, but it still hasn't passed the competition bills. The 
work even on algorithms.
    The simple idea is that we should do some reforms to the 
app stores. This idea that we shouldn't be self-preferencing 
their own products when they have a 90 percent or a 40 percent 
market share, depending on which platform it is. The hypocrisy 
of things that we were told would break the internet that we 
now see them agreeing to do in Europe. That is the final dagger 
as far as I'm concerned and why you see shifting positions on 
Section 230.
    Obviously, this is also a cry for some ability of the 
companies to come forward and actually propose some real 
reforms we can put into law, because so far it's just buy it 
all off with money, commercials, ads attacking those of us who 
have been trying to make a difference.
    So my question, I guess, to you, Professor Farid, first is, 
they've said, ``Trust us, we've got this,'' for so long. And 
the way the internet companies amplify content profit as 
Senator Hawley was explaining off of it, allowing criminal 
activity to persist on their platforms, we clearly need our 
reforms.
    And I always think of it like if you yell ``Fire'' in a 
crowded theater, you know, the theater or multiplex, as long as 
they have nice exits, they aren't going to be liable. But if 
they broadcasted it in all their theaters, that would be called 
algorithms, that would be a different story.
    You noted in your testimony that some legal arguments have 
conflated search algorithms with recommendation algorithms. Can 
you explain how these algorithms differ and their role in 
amplifying content on platforms?
    Professor Farid. Good. Thank you, Senator. So if you go to 
Google or Bing and you search for whatever topic you want, your 
interests and the company's interests are very well-aligned. 
The company wants to deliver to you relevant content for your 
search, and you want relevant content, and we are aligned and 
they do a fairly good job of that. That is a search algorithm. 
It is trying to find information when you proactively go and 
search for something.
    When you go to YouTube, however, to watch a video of a link 
that I sent you, you didn't ask for them to queue up another 
video. You didn't ask for the thumbnails down the right hand 
side. You didn't ask for any of that. And, in fact, you can't 
really turn any of that off. That's a recommendation algorithm. 
And the difference between the search algorithm where the 
company's interests and your interests are aligned, that is not 
true of recommendation algorithms. Recommendation algorithms 
are designed for one thing: to make the platform sticky, to 
make you coming back for more because the more time you spend 
on the platform, the more ads are delivered, the more money we 
make.
    And if we're talking about harms, we've talked about 
terrorism, we've talked about child sexual abuse, we've talked 
about illegal drugs and illegal weapons, we should also talk 
about things like body image issues. We should talk about 
suicidal ideation.
    Go to TikTok, go to Instagram. Start watching a few videos 
on one topic, and you get inundated with those. Why? That's 
because the recommendation is vacuuming up all your personal 
data and trying to figure out what is it that is going to bring 
you here over and over again.
    Last thing on this issue, because it goes to knowledge, is 
that the Facebooks of the world, the YouTubes of the world know 
that the most conspiratorial, the most salacious, the most 
outrageous, the most hateful content drives user engagement. 
Their own internal studies have shown that as you drive content 
from cats, to lawful, to awful but lawful, and then across the 
violative line to illegal, engagement goes up.
    And so, the algorithms have learned to recommend exactly 
the problematic content, because that is what it drives user 
engagement. We should have a conversation about what is wrong 
with us. Why do we keep clicking on this stuff? But the 
companies know that they are driving the most harmful content 
because it maximizes profit.
    Senator Klobuchar. Okay. Thank you. Professor Franks, kind 
of along those lines, circuit courts have interpreted Section 
230 differently, with some saying that social media and 
internet companies are not liable for content that could only 
have been created with the tools they designed.
    However, unlike most other companies that make dangerous or 
defective products, internet and social media companies are 
often shielded by Section 230 from cases that involve design 
defects. Should Congress consider reforming Section 230 to 
allow for design defect cases to move forward when a site is 
designed in a way that causes harm?
    Professor Franks. Thank you. I think it would be, as I said 
with the other suggestion about revisions to Section 230, the 
concern I would have is about how exactly to codify that sort 
of standard. And I think that the impulse there is a good one. 
I think that the distinction between faulty design as opposed 
to simply recommendations or making access to other content, I 
think that is a solid distinction to make.
    My concern is that the way--or, the best way and most 
efficient way to reform Section 230 is to try not to think 
about discreet categories of harmful content or conduct, but 
rather to talk about the underlying fundamental problem with 
Section 230, which is this idea that you should provide 
immunity in exchange for basically doing nothing or for even 
for accelerating or promoting harmful content.
    Senator Klobuchar. Yes, I agree. I was just trying to, you 
know, throw it out there. The last thing, how would reforms to 
Section 230, Professor Franks, create a safer internet for kids 
and where Congress should focus its efforts. We have a lot of 
things and talk a little bit about why that could be a 
priority.
    Professor Franks. Well, one of the reasons that's a high 
priority is exactly for the reasons that Professor Farid has 
been speaking to, that those types of behavioral changes that 
we see that are essentially an intended consequence or an 
intended strategy on the part of companies to keep people on 
their platforms longer, to keep them engaging with those 
platforms, these are dangerous for adults, but they're 
particularly pernicious for children.
    This is a kind of approach that is essentially trying to 
encourage a form of addiction to these services. And it is 
part, I think, of what explains some of the very heightened 
rhetoric on the site, on the part of the tech industry and 
those who are convinced that the status quo is the best way 
forward. People identify so closely with their social media 
platforms at this point that any changes that are suggested to 
Section 230 feel like personal attacks.
    And I think that that is a testament to how much Google and 
Facebook and TikTok, and every other company we can think of, 
is really striving and succeeding to make us feel that we 
cannot live without these products. That they're not products 
that we are using, but they're using us. And so, I think it is 
a particular importance and concern when this kind of effect is 
having on younger and younger children who have had really no 
time to develop their own personalities and their own 
principles.
    Senator Klobuchar. Okay. Thank you.
    Chair Blumenthal. Thanks, Senator Klobuchar. Senator 
Hirono.
    Senator Hirono. Thank you, Mr. Chairman. It's very clear 
that we want to make changes to Section 230, but there are 
always unintended consequences whenever we attempt to do that. 
There has been a lot of discussion of unintended consequences 
arising out of the SESTA/FOSTA.
    Six workers have raised legitimate concerns about the 
consequences of that legislation and its effect on their 
safety. But that does not mean that we should shy away from 
reforming Section 230 to protect other marginalized groups. 
Just that we need to be very intentional about doing so and 
paying attention to the potential unattended consequences. This 
is for Professor Franks. Can you explain how the experience of 
SESTA/FOSTA should inform the types of reforms we should 
pursue?
    Professor Franks. Thank you. I do think that SESTA/FOSTA is 
a good and instructive example of what can go wrong when 
Section 230 is amended. It, of course, had the very best of 
intentions. There were concerns, however, throughout the 
process that were coming from some of the individuals and 
groups who were saying, this kind of change is going to affect 
us most, and please listen to our concerns about how it should 
be done.
    So I think that one lesson there is definitely to identify 
and to bring into the conversation the individuals who are most 
likely to be impacted by any form of reform. That's lesson one.
    I think the other lesson is that this shows the dangers of 
attempting to highlight a certain category of bad behavior and 
try to carve that out into the statute as opposed to, as I said 
before, identifying the fundamentally flawed nature of Section 
230 as it stands right now as it's interpreted by the courts 
and try to fix this on a more generalized level. Because I 
think the more particularized we tend to get with this, the 
more likely it is that we are going to make mistakes and have 
unintended consequences.
    Senator Hirono. Well, when you talk about not focusing on 
certain types of bad behaviors, but to look at the sort of the 
general problem with Section 230, so how would you make the 
kind of changes that you're talking about to protect vulnerable 
communities?
    Professor Franks. The two forms of amendment that I 
particularly suggest are changing the word ``information'' in 
(c)(1) to refer to ``speech'' instead. And the other is to 
limit (c)(1)'s protections to those who are not engaged in the 
knowledgeable promotion or contribution to unlawful content. 
I've suggested that the language there should be a deliberate 
indifferent standard because that is a standard that is used in 
other forms of third-party liability cases and areas.
    And so, what I think would be useful about that approach, 
is that this is not an approach that's going to try to take one 
type of harm and say that that is more harmful than something 
else. But, rather, to say this is really how this form of 
liability tends to work in other industries and in other 
places.
    And to be clear, not just industries that have very little 
to do with what the tech industry supposedly does, namely 
sometimes speech, but actually the industries that are very 
much about speech, including newspapers and television 
broadcasters and universities, all of whom have to be 
responsible at a certain level if they are deliberately 
indifferent to unlawful conduct.
    Senator Hirono. I think you were asked this question 
related to the SAFE TECH Act, which does talk about protecting 
speech rather than information. So are the other panelists 
aware of the provisions of the Safe Tech Act? And if so, any of 
you, would you agree that to protect speech is okay, but, you 
know, protecting information is not where we want to go? That 
may be one of the approaches that we should take to reforming 
Section 230. Would any one of the other panelists like to weigh 
in?
    Professor Schnapper. This may be too complicated to solve 
quite that way. Turning to Senator Klobuchar's point, it's not 
difficult to imagine it with lawyers putting back into the word 
speech, everything that the Committee thought it was taking 
out.
    Senator Hirono. Darn those lawyers. Okay. Yes, I realize 
that if we're going to make that kind of change, I think we 
need to provide more guidance as to what we mean by what we 
want to protect.
    Again, for Professor Franks, one of the concerns I've had, 
particularly after the Supreme Court struck down a 50-year 
precedent and the right to abortion is that reproductive health 
data collected by these tech platforms may be used to target 
individuals seeking these services.
    So these apps and websites are collecting location data, 
search histories, and other reproductive health information. 
And last Congress, I introduced My Body, My Data Act to help 
individuals protect private sexual health data. However, what 
I'm understanding is that though that Act creates a private 
right of action to allow individuals to hold regulated entities 
accountable for those violations, these tech platforms can 
currently just hide behind Section 230, even when put on notice 
that this information is being used for nefarious purposes, 
unintended purposes.
    Based on your extensive legal experience, is there a way to 
hold tech companies disseminating reproductive health 
information from behind the shield of protection accountable?
    Professor Franks. I think it's possible. I think that it 
would require moving away from this dominant interpretation of 
Section 230 as it currently stands.
    Because that view of Section 230, that revision of (c)(1) 
as providing some sort of unqualified immunity to these 
platforms, really makes it difficult for any individual who is 
harmed in this way to even get their foot in the courtroom 
door.
    And so, I think what we would need at this point is either 
a very wise decision from the Supreme Court about how to 
properly interpret (c)(1) and, or we would need Congress to 
clarify that once again, (c)(1) can be modified to make sure 
that it is clear, that these companies can in fact be sued if 
there is a plausible theory of liability and a causal 
connection between what those platforms did and the ultimate 
harm that is resulting to a plaintiff.
    Senator Hirono. It's not that easy for the plaintiff to 
show that, but she should have that opportunity, I would say.
    Professor Franks. Exactly.
    Senator Hirono. Thank you. Thank you, Mr. Chair.
    Chair Blumenthal. Thanks, Senator Hirono. We may have other 
Members of the Subcommittee or our Committee come, but why 
don't we begin the second round of questions now and we can 
interrupt to accommodate them when they come here.
    Let me just say to Dr. Franks, I appreciate your comments 
about SESTA, as one of the principal authors and co-sponsors. 
We endeavored to listen and we will change the statute if it 
has unintended consequences, and we will listen in the course 
of ongoing Section 230 reform, whether it's the EARN IT Act 
that Senator Graham and I are co-sponsoring. A number of us 
have proposals.
    As I mentioned, Senator Klobuchar with the Safe Tech Act 
and Senator Hirono is a co-sponsor, as I am. Senator Hawley has 
a number of very promising proposals, but I think we should be 
very clear about what is really going on here. And, Professor 
Schnapper, I think you made reference to the money involved.
    The fact of the matter is that Big Tech is making big bucks 
by driving content to people knowing of the harms that result. 
We saw that in the documents that were before the Commerce 
Subcommittee on Consumer Protection, that help support the Kids 
Online Safety Act. More eyeballs for longer periods of time 
mean more money. And Big Tech may be neutral or indifferent on 
the topic of eating disorders, suicide or bullying or other 
harms. They may not want to take out an ad saying, engage in 
these activities, but they know that repeating it and 
amplifying it, and in fact, addicting kids to this kind of 
content has certain consequences. And as Justice Kagan said, 
``Why should Big Tech be given a pass?''
    An airline, Boeing, that has a faulty device that causes 
the plane to nose-dive, a car company like GM that has a 
defective ignition switch that causes the car to stop and go 
off the road, they're held responsible. Why shouldn't Big Tech 
be held responsible? Whether the standard's deliberate 
indifference or some other standard? It may be difficult, it 
may be complicated, but it's hardly impossible to impose a 
standard.
    So let me ask you, Mr. Sullivan, what's your solution here? 
I'm asking Big Tech to be part of the solution, not just the 
problem.
    Mr. Sullivan. Well, let me be clear that I can't speak for 
Big Tech because I work for a nonprofit.
    Chair Blumenthal. Well, I'm asking then.
    Mr. Sullivan. But we have, you know, our concern is really 
what users need. Our concern is really what people need. And 
what we are trying to point out is that 230 is the thing that 
allows the internet to exist. So I am not here to say that the 
behavior that we see, the behavior of various large tech 
corporations, the behavior of some platforms, you know, that 
are perhaps outside of the United States for that matter, that 
those are all unproblematic. There are definitely problems 
there.
    What I'm suggesting is that a narrow application, the 
attacking of this narrow piece of legislation is going to harm 
the internet in various ways. And so, if you want to do 
something about large corporations, for instance, then you've 
got an issue having to do with industrial policy. It's not an 
issue to do actually with the internet. And it seems to me 
that, you know, these concerns are legitimate ones, but I think 
we're trying to go after the wrong tool.
    Chair Blumenthal. Well, the tool can't be just more 
competition. The tool can't be more privacy, as you've 
suggested in your opening comments. It has to be something 
dealing with this harm. And as I have said before, I'll say 
again, the carve-outs, the limits that have been imposed so 
far, whether it's Henderson or Lemmon or other caselaw, haven't 
broken the internet. I don't think you can argue that Section 
230 as it exists right now is essential to continuing the 
internet. That's not your position. Is it?
    Mr. Sullivan. I think that Section 230 is a critical part 
of keeping the internet that we have built. And the reason I 
think that is because it protects people in those interactions. 
It protects from that kind of third-party liability. I am not, 
you know, I'm not here to suggest that it is logically 
impossible to find a particular carve-out from 230 that will 
help solve some of these problems.
    I haven't seen one yet, and so I'm very skeptical that 
we're going to get one. But I am not here to suggest that it's 
logically impossible. I'm just very concerned that we 
understand the potential to do a lot of harm to the internet. 
When people say destroy the internet, I think that this, you 
know, this sounds like an on-off switch, but that's not how the 
internet works.
    And we can either drift in the direction of losing the 
advantages of the internet, losing the interactivity, losing 
the ability of users to have the experience that they need 
online and in favor of a centrally controlled system. And that 
is the thing that I'm mostly concerned about.
    Chair Blumenthal. So taking the Kids Online Safety Act, 
which simply requires these tech platforms to enable and inform 
parents and children, they can disconnect from the algorithms. 
And if they do something, you know, let's use some non-legal 
term, something really outrageous, and they violate a basic 
duty of care, which under our common law is centuries old, they 
can be held liable.
    And as Senator Hawley said so well, they get a day in 
court. That's fundamental to our system. I don't understand why 
there would be harms inevitably as a result of that kind of 
change.
    Mr. Sullivan. The concern that I have is that, you know, in 
the United States, it's easy to initiate a lawsuit and it's 
expensive and complicated to defend against it. So very, very 
large players, incumbents that we have today, the people who 
are, you know, the richest corporations in the history of 
capital, they have the resources to do this.
    But if you are like a community website, you know, or a 
church website and you allow discussions on there and somebody 
comes on and they start doing terrible things, you're going to 
end up with the exact same liability and that will gradually 
turn down the ability of the internet to connect people to one 
another. That's what I am concerned about.
    You know, I mean, I'm not carrying any water for a giant 
tech corporation. I don't work for one, and I can't really, you 
know, influence their direction. But my point is that the way 
230 works right now, it protects all of the interaction on the 
internet. And if we lose that, we will most certainly lose the 
internet. We'll still have something we call the internet for 
sure, but it will not be the thing that allows people to reach 
out and connect to one another. All of these terrible harms, 
all of these terrible things that happen online, there are 
corresponding examples of people getting help online.
    Chair Blumenthal. I appreciate your concern about the 
community websites, but they're not the ones driving suicidal 
ideation or bullying or eating disorders to kids. And I 
understand that Section 230 dates from a time when the internet 
was young and small. Nobody's forever young, and these 
companies are no longer small.
    They're among the most resourced of any companies in the 
history of capitalism. And for them of all companies to have 
this free pass, as Justice Kagan called it, seems to me not 
only ironic, but unacceptable. And again, what's at stake here 
ultimately are the dollars and cents that these companies are 
able to make by elevating content.
    And I sort of am reminded of Big Tobacco, which said, ``Oh, 
we're not interested in kids. We don't advertise to them. We 
don't promote our products to children.'' And of course, their 
files, like Facebook's files, showed just the opposite. They 
knew what they were doing in order to raise their profits, and 
they put profits over those children.
    So I think, again, I'm hoping, not talking to you 
personally, but to the internet world out there and the tech 
companies that have the resources and responsibility, they will 
be a constructive part of this conversation. Thank you.
    Senator Hawley. You know, isn't the best--let me just pose 
this question on the panel. Maybe I should start with you, 
Professor Franks, but isn't the best way to address the many 
abuses that we're seeing by the Big Tech companies, and we've 
talked about some of them today--with CSAM, Professor Farid, 
you mentioned CSAM, that's got to be one of the leading ones. 
I'm a father of three children, all of them very small. I worry 
about this every day--my oldest is 10--as they get old enough 
to want to be on the internet.
    There are other abuses, the videos that promote suicide, 
the videos that promote violence, and we could go on and on. 
Isn't the best way to deal with that just to allow people to 
get into court and hold these companies accountable? Here's 
what I've learned in my short time in the Senate, is that we 
can write regulations and we can give the various regulatory 
agencies the power, whether it's the FTC or others, the power 
to enforce them.
    But my experience is, my observation is, is that the Big 
Tech companies tend to own the regulators at the end of the 
day. I mean no offense to any of the regulators who are 
watching this, but, you know, you know I'm right. At the end of 
the day, it's a revolving door. They go to work for the Big 
Tech companies. They come out of employment and go into the 
Government. And it's just amazing how the regulators always 
seem to end up on the side of tech.
    And for that matter, even when they do fine tech, even if 
it's a big fine, Meta got fined, I think, a billion dollars a 
couple years ago. They didn't care. Didn't change anything. 
That's nothing to them. The revenues are massive. Their profits 
are massive. But what strikes fear into their hearts is if you 
say, ``Oh, but we'll allow plaintiffs to go to court.''
    Take the Big Tobacco example. What finally changed the 
behavior of Big Tobacco? Lawsuits. Normal people got into 
court, class action suits. So isn't that really what we're 
talk--just to simplify this, isn't that what we're really 
talking about today?
    I mean, the thing that we ought to be doing is figuring out 
a way, and you proposed a way, Professor Franks. I was just 
reviewing your written testimony here a second ago with the 
changes you would make to the statute. But the gist of that is 
to create a system and a standard that is equitable in terms of 
being, it's the same across the board for everybody. You don't 
single out one particular piece of conduct. You would just 
change the standard. But the point of it is, people would be 
able to be using this standard to get into court, to have their 
day in court, and to hold these companies accountable. Is that 
fair to say? Is that too simplified?
    Professor Franks. I think that is fair to say, that as 
you're pointing out, litigation is one of the most powerful 
ways to change an industry. And it's not just because of the 
ultimate outcome of those cases, but also because of the 
discovery in those cases. What we get to see instead of having 
to wait for whistleblowers or wait for journalists, is actually 
the documents themselves, internal documents about what you 
knew, when you knew it, and what you were doing.
    And so, I think that exactly for this reason, we have to be 
interpreting Section 230 as not providing some kind of 
supercharged immunity that no other industry gets, but 
actually, yes, allow people who have been harmed to get into 
court, make their claim. They may not prevail, they might. But 
at any event, we will see some public service also in terms of 
the discovery process that shows us what these companies are 
doing and to the tune of how much money.
    Because a lot of what is being said about the distinctions 
between the big corporations and the little ones, how did the 
big corporations get so big? Because they didn't get sued. And 
so, if we care about that kind of monopolization, if we care 
about that kind of disproportionate influence, what will 
benefit the entire market is actually letting those companies 
be sued if they have caused harm.
    Senator Hawley. Yes, I couldn't agree more. And with all 
due respect to you, Mr. Sullivan, I know you have an obligation 
to represent the people for whom you work, but I would just say 
it's pretty hard to argue that the social media landscape, the 
social media industry right now, for example, is a good example 
of a competitive industry.
    It's not particularly competitive at all. It's controlled 
overwhelmingly by one or two players. It is the very 
quintessence of monopoly. I mean, you have to go back over a 
century in this country's history to find similar 
monopolization. And to Professor Franks' point, I think you can 
make a very strong argument that Section 230 and the incredible 
immunity that it has provided for a handful of players has 
contributed to this monopolization. It is in effect a massive 
Government subsidy to the tune of billions of dollars a year.
    So I'll just say that, listen, as a conservative 
Republican, I mean, I want to be clear about this. I am a 
conservative Republican. I believe in markets. I'm skeptical of 
massive regulatory agencies, but one of the reasons I'm 
skeptical is I just see them get captured time, after time, 
after time. But I believe in the right of people to be heard 
and to be vindicated and to have their days in court.
    And I think the best way you protect the little guy and 
give him the power or her the power to take on the big guy, is 
allow them into court, let them get discovery, let them hire a 
tort lawyer, let them bring their suits. And you're right, 
Professor Franks, maybe they win, maybe they don't, but that's 
justice, right? It'll be a fair, even-handed standard.
    The last thing I would say is that, I think that's actually 
much closer to what Section 230, when Congress wrote it, was 
meant to be. If you look at the language of 230, you know, it's 
interpreted by courts to provide this super immunity, as you 
were saying, Professor Franks. I think it's very arguable, and 
this is the argument I made in the Google case of my amicus 
brief, was that listen, what it really was meant to do is 
preserve distributor liability.
    There's a baseline at the common law of distributor 
liability that says if a distributor who doesn't originate the 
speech, but merely hosted and distributes it, they can't be 
liable for somebody else's speech and shouldn't be. I think we 
all agree on that. Only if they promote speech that they know 
is unlawful or should have known as unlawful, regardless of the 
nature of the speech. Which gets to your point, Professor 
Franks, you know, whatever category you want.
    If it's unlawful, they know it, they should have known it, 
then under traditional distributor liability, then and only 
then they can be liable. But what has happened is, the courts 
have obviously swept that away completely now too, and 230 bars 
even that form of liability. Surely we can agree that there 
should be--whether it's the standard you propose Professor 
Franks, which I think is pretty close actually to traditional 
distributor liability.
    We could find a way to allow people to have their basic 
claims vindicated to hold accountable these companies when they 
are actively promoting harmful content that they know or should 
know is harmful.
    And I would just submit that's the best way forward here, 
and I look forward with working with the Chairman here as we 
continue to gather information and try to put forward proposals 
that will do that in a meaningful way. Thank you, Mr. Chairman.
    Chair Blumenthal. Thanks a lot, Senator Hawley. I have 
another question or two relating to AI. We haven't really 
talked about it specifically in much detail, but obviously 
Americans are learning for the first time with growing 
fascination and some dread about ChatGPT and Microsoft Bing 
passing law school exams and making threats to users, both 
fascinating and pretty unsettling in some instances.
    And some of what's unsettling involves potential 
discrimination. There's a study from Northeastern University, 
Harvard, the nonprofit Upturn--studies by them finding that 
some of Facebook's advertising discriminates on the basis of 
gender, race, and other categories. Maybe I could ask the panel 
whether those threats, beginning with you, Professor Franks, 
are distinct or whether they're part of this algorithm threat 
that we see generally involving some of these tech platforms.
    Professor Franks. With the caveat that I'm not an AI expert 
by any means, I think I would reiterate my position that my 
concern about approaches that try to parse whether something is 
an algorithm or whether something is artificial intelligence or 
whether something is troubling from a different perspective, I 
would rather the conversation be about, again, the fundamental 
flaws and the incentive structure that Section 230 promotes, 
rather than trying to figure out whether one particular 
category or another is presenting a different kind of harm.
    I think the better approach is to look at that fundamental 
incentive structure and ensure that these companies are not 
getting unqualified immunity.
    Chair Blumenthal. Professor Farid.
    Professor Farid. There's a lot that can be said on this 
topic, Senator Blumenthal. I'll say just two things here. One 
is we are surely but quickly turning over important decision-
making to algorithms, whether they are traditional AI or 
machine learning or whatever it is.
    So, for example, the courts are using algorithms to 
determine if somebody is likely to commit a crime in the future 
and perhaps deny them bail. The financial institutions have, 
for decades, used algorithms to determine whether you get a 
mortgage or a small business loan.
    Medical institutions, insurance companies, employers are 
now, more likely than not, the young people sitting behind you 
when they go to apply for a job, will sit in front of a camera 
and have an AI system determine if they should even get an 
interview or not. And I don't think it's going to surprise you 
to learn that these algorithms have some problems. They are 
biased. They are biased against women. They are biased against 
people of color.
    And we are unleashing them in these black box systems that 
we don't understand them, we don't understand the accuracies, 
we don't understand the false alarm rates, and that should 
alarm all of us. And I haven't gotten to the ChatGPTs of the 
world yet, or the deepfake yet.
    So the second thing I want to say about this, is there's 
going to be something interesting here around 230 and 
generative AI, as we call it. So generative AI is ChatGPT, 
OpenAI's DALLE, the image synthesis, and deepfakes.
    Let's say we concede the point that platforms get immunity 
for third-party content, but if the platforms start generating 
content with AI systems, as Microsoft is doing, as Google is 
doing, and as other platforms are doing, there's no immunity. 
This is not third-party content.
    If your ChatGPT convinces somebody to go off and harm 
themselves or somebody else, you don't have immunity. This is 
your content. And so, we have to--I think the platforms have to 
think very carefully here. More broadly, we need to think very 
carefully how we are deploying AI very fast and very 
aggressively. The Europeans have been moving quite aggressively 
on this. There is legislation being worked on in Brussels to 
try to think about how we can regulate AI while encouraging 
innovation, but also mitigating some of the harms that we know 
are coming and have already come to our citizens.
    Chair Blumenthal. Thank you very much. Important points. 
Ms. Bennett.
    Ms. Bennett. So your question, is there anything 
fundamentally different? I think with respect to 230 with these 
different kinds of technologies and with the same caveat as 
Professor Franks gave, which is I'm not an AI expert, you know, 
I think the answer is no. And the fundamental distinction here 
is, are we trying to impose liability on these companies for 
something someone else said? So, because Facebook allowed 
somebody to post something?
    Or, is the harm really caused by something the company 
itself is doing? You know, there have been claims against 
Facebook, for example, that it differentially provides ads on 
insurance and housing and things like that, by race or by 
gender or by age.
    And the problem there isn't the housing ad. The housing ad 
is fine. The problem is the distribution to by race or by age 
or by gender. The harm is being caused by what the platform is 
doing, not by the content.
    And I think that's true. You know, you see that ChatGPT. 
You know, similar principles. The harm isn't what people are 
putting into ChatGPT. It's what ChatGPT might spit out. And 
there again, it's the conduct of the platform itself. And so, I 
think the principles apply, you know, no matter what the 
technology is, this distinction between content that somebody 
else put on the internet and what the platform itself has done.
    Chair Blumenthal. Mr. Sullivan
    Mr. Sullivan. I think that's broadly right. More 
importantly, I don't really think that AI is fundamentally a 
part of the internet. It's just a thing that happens to use it 
a lot of the time. But the reality under those circumstances is 
it's another piece of content. Somebody else has made it. And 
so, for 230 purposes, I don't think it's--I don't think it's 
part of the conversation.
    Chair Blumenthal. Professor.
    Professor Schnapper. I just add that it's my understanding 
that to some degree, AI is in place now. That is when these 
algorithms were constantly being tweaked to be more effective, 
and some of it's done by software engineers, but some of it is 
machine learning. As the software discovers what works and what 
doesn't, it changes what it does. That's been going on for some 
time.
    Chair Blumenthal. Thank you. Well, I think that that last 
question shows some of the complexity here. I'm not sure we all 
agree that AI is totally distinguishable. I guess it depends on 
how you define AI and algorithms. But I do think that we can 
make a start on reforming Section 230 without waiting for a 
comprehensive or precise definition of AI.
    And I want to thank this panel. It's been very, very 
informative and enlightening and very, very helpful. We've had 
a good turnout and many of you have come from across the 
country. Really appreciate it. And the record is going to be 
held open for 1 week in case there are any written statements 
or questions from Members of the Subcommittee.
    I really do thank you and we are going to be back in touch 
with you, I'm sure, as we proceed, but have no doubt we are 
moving forward. I think the bipartisan showing here and the 
bipartisan unanimity that we need change is probably the 
biggest takeaway. And I think we are finally at a point where 
we could well see action.
    Can't predict it with certainty. Some of it will depend on 
the cooperation from the tech platforms and social media 
companies that have a stake in these issues. But I'm hoping 
they will be constructive and helpful. And you have certainly 
been all of that today. Thank you so much. This hearing is now 
adjourned.
    [Whereupon, at 3:51 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]

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