[Congressional Record Volume 166, Number 158 (Monday, September 14, 2020)]
[Senate]
[Pages S5570-S5571]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              Free Speech

  Mrs. BLACKBURN. Madam President, it seems like every other week we 
turn on the TV only to hear a pundit declare that we are living in the 
most divisive time in the history of our Nation. Now, as I am sure many 
would point out, especially if we were having this discussion on social 
media, those who lived through the Civil War and other contentious eras 
might have something to say about that, but we can all agree it is a 
contentious time.
  What I know for sure is this: Every single day I see the American 
people losing the hope they once had in the absolute inviolability of 
our fundamental right to free speech and expression. They may not be 
too worried about official action changing those rights, but what they 
do see is a dwindling respect for what those rights mean outside of the 
context of what lawyers and lawmakers understand as protected speech. 
They are not thinking about Supreme Court cases. They are wondering 
what changed in the hearts and minds of their countrymen to turn simple 
disagreements into all-out war. They long for the days when they would 
have friendly banter with their neighbors and with their friends and 
discuss the issues of the day.
  Well, over the past few months, I have watched this national 
discourse spiral to the point where most people I talked to back home 
believe that civil debate is just about impossible, and it worries 
them. What happened to mutual respect? What happened to point-
counterpoint? What happened to civil discourse in the public square? 
What happened to sitting around the table after a Sunday School class 
and talking about how what you have discussed applies to the issues of 
the day? Have we lost it?
  I have witnessed obvious efforts to threaten and intimidate 
conservative activists. I have watched these go unchecked by powerful 
legal figureheads who should have known better. And what is worse, 
these threats and intimidation tactics have spilled over into the 
online platforms millions of Americans use to check the news, stay 
connected to friends, and share updates on the lives of their families.
  Now, I think we can agree that most of our friends in Silicon Valley 
who are in charge of those platforms harbor some liberal bias. That 
being said, I think we can also agree that doesn't mean they can't be 
objective when it comes to things like content moderation. Of course, 
that is not how it works out in real life. The modern era's hostility 
toward debate provides those platforms with a perverse incentive just 
to flip the switch, shut down conservative voices, and then suggest 
that we had it coming all along: You shouldn't have been saying such. 
Well, we all know that this seems to be a one-sided argument.
  Now, those in this Chamber who follow technology policy know that Big 
Tech uses the liability shield granted under section 230 of the 
Communications Decency Act to justify this type of censorship. In part, 
the statute reads:

       No provider or user of an interactive computer service 
     shall be held liable on account of--any action voluntarily 
     taken in good faith to restrict access to or availability of 
     material that the provider or user considers to be obscene, 
     lewd, lascivious, filthy, excessively violent, harassing, or 
     otherwise objectionable, whether or not such material is 
     constitutionally protected.

  Remember that ``otherwise objectionable'' catchall. That is going to 
be important. Congress originally constructed those provisions to 
protect startups and innovators from frivolous content moderation 
lawsuits that could either bankrupt their firms or severely restrict 
their access to venture capital. But, in reality, Big Tech has abused 
this privilege.
  Now, listen to this part because this also is as important as that 
``otherwise objectionable'' phrase. Congress originally constructed 
these provisions of section 230 to protect startups and innovators from 
frivolous content moderation lawsuits that could either bankrupt their 
firms or severely restrict their access to venture capital. This was 
done because the internet was in its infancy, and people wanted to make 
certain they could get their sea legs underneath them, have a little 
space, and be able to innovate. If they made mistakes, they would be 
able to rectify those mistakes and not get sued.
  Those days are long gone, and, yes, Big Tech has abused this 
privilege. They became very comfortable with looking at section 230 and 
using it as a way to issue take-down notices, as a way to restrict 
content, and as a way to manipulate prioritization. It came in line 
with their thought processes and their ideas, but, in reality, we know 
that this has become an excuse to censor content that they disagree 
with in principle, and, in doing so, they have damaged--perhaps in some 
ways irreparably--the integrity of the national discourse.
  The problem isn't just that they have unilaterally imposed their own 
preferred content filter into the browser and news feeds of millions of 
Americans and manipulated the availability and quality of the 
information; it is that in the process of doing so, they have trained 
their customers to expect that filter to cover their real-world 
interactions with people whose beliefs are much more diverse than those 
of the Silicon Valley's wealthiest residents.
  You know, this is one of those Hollywood versus the heartland sorts 
of issues. They think they know better than the people across this 
country, so they feel that they can impose their own filter onto your 
browser and your news feed and thereby manipulate the availability and 
the quality of information to which you are going to have access, and 
they are doing it because they can, they think, because they have been 
using 230 as their shield.
  Last week, I joined my colleagues Senators Wicker and Graham to 
introduce the Online Freedom and Viewpoint Diversity Act, and I thank 
them for their willingness to work with me and to move a product to 
completion and introduction. To introduce this legislation means we are 
introducing accountability into our dealings with this notoriously 
opaque and unregulated industry
  To be clear, this piece of legislation isn't meant to construct a new 
set of guide rails that will let Washington dictate the inner workings 
of a platform's content moderation strategy. What it does is change the 
language of the existing statute to clarify some ambiguous terminology. 
Basically, you are clarifying who can use liability protection, when 
they can use it, how they can use it, and where it can be applied.
  First and foremost, the bill clarifies those scenarios when an online 
platform's decision to restrict access--restrict it, censoring, 
diminishing, pushing it back--to certain types of content will result 
in their losing that section 230 shield. Did they do it because they 
wanted to or did they do it because it is language that should be 
shielded and taken down?
  This provision will address those famously vague content moderation 
policies that are almost impossible for users to challenge. How many 
times have you looked at terms of service and how many times have you 
looked at community standards and said: I can't figure out what this 
means. Guess what. Most people cannot. And the online platform--it is 
fine with them if you can't figure it out. It gives them more latitude.
  Next, it conditions the content moderation liability shield on a 
reasonableness standard. In order to be protected from liability, a 
tech company may only restrict access to content where it has an 
``objectively reasonable belief'' that the content falls within a 
certain specified category.
  So the purpose of this is to take away the benefit of the doubt. We 
want them to really think before restricting content. What they have 
done is just take it down--no fear that their hands would be slapped. 
And what do we know about Big Tech? They are going to push the envelope 
until they get their hands slapped.
  So, instead of giving them the benefit of the doubt, the next time 
they decide they are going to go in here and they are going to take 
something down, we

[[Page S5571]]

want to give them pause. They need to think before they do that.
  Our update removes the ``otherwise objectionable'' standard that I 
mentioned previously, and it replaces it with some specific terms that 
would protect platforms when they remove content that promotes 
terrorism, promotes self-harm, or is unlawful.
  You know, it is a good thing when Congress can be specific in what 
they mean and when they can be specific in the intent of the law. 
Changing this language would provide that specificity that is needed.
  Last but not least, the bill clarifies the definition of 
``information content provider'' to include a person or entity that 
creates, develops, or editorializes information provided through the 
internet or any other online platform.
  Now, this will help online publishers, periodicals, and websites that 
are news websites. But then you have Big Tech block them because 
somebody puts up something in the comment section that Big Tech doesn't 
like. Of course, we all are familiar with Mark Zuckerberg saying that 
his company, Facebook, works more like a government than a corporation. 
So, this pulls back on what they have used as their control.
  There has been a lot of discussion in this Chamber regarding the best 
way to handle section 230. Many argue that we would all be better off 
if Congress wiped the statute off the books and just got rid of it 
completely. But I will tell you, I fully believe that is a misguided 
approach. That strategy will not temper the effects of Big Tech's bias 
because their bias stretches far beyond interactions that raise section 
230 concerns.
  This isn't a simple issue. Those of us who have been working on 
section 230 for years are still studying the ripple effects these 
changes will bring. What we know for sure is that simply closing the 
book on section 230 via congressional decree would be like casting a 
protest vote against Big Tech's bad behavior. It would be absolutely 
pointless.
  Until we recognize the importance of clarifying and preserving 
liability protections for the internet we have now and not--not--the 
internet we had in 1996, Big Tech will keep pushing the boundaries 
until private corporations will become judge and jury over not only how 
Americans discover new information but what information is actually 
there to discover.
  It is time for the U.S. Senate to step up, to do the work, and to 
write those changes into law.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. CANTWELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.