The Senate is teeming with proposals, many bipartisan, to combat what supporters say is Big Tech’s failure to combat child pornography and otherwise promote the safety and privacy of minors online.
There’s been movement on several of these bills. But Senate passage, let alone enactment, for any of them still seems elusive because of opposition from powerful opponents.
The tech companies yield significant sway because of their size, popularity and wealth. Civil rights groups protest that the measures would limit free speech on the internet. Some lawmakers worry the bills could unintentionally deter the encryption needed to safeguard data. And some Democrats say the bills would enable conservative governors to censor content they dislike, particularly from LGBTQ individuals.
Sen. Lindsey Graham, R-S.C., referred to two sources of opposition at a Judiciary Committee markup last Thursday shortly before the panel approved his bill that would eliminate online media platforms’ Section 230 liability protections for content showing child sexual abuse posted by users.
“[Social media companies] are going to beat us. We’re going to pass [my bill] today, but it’ll go nowhere,” Graham said. “They got a ton of money. And every time you try to do something, there’s some group saying you’re destroying speech. And the money talks.”
The panel advanced his bill by voice vote.
Sen. Mike Lee, R-Utah, a member of the panel, brought up the encryption risk at the Thursday markup and warned that the legislation could have unintended security consequences. But he also said his concerns could be resolved and agreed the protections in the bill are needed.
“Everything we do online relies on encryption. Everything from protecting America’s national security secrets to something as pedestrian as a purchase you make on Amazon or any other online vendor relies on encryption,” he said. “We’ve got to be careful that we don’t accidentally destroy encryption.”
The Center for Democracy and Technology, which along with 132 other organizations joined a letter to the panel opposing the Graham measure, added another worry to the list: a threat to free speech. The American Civil Liberties Union signed that letter and sent a separate one of its own.
“These providers will remove any content that they suspect could be CSAM [child sexual abuse material] or even simply all sexually explicit content, sweeping up large amounts of content that are not CSAM and are constitutionally protected speech,” the groups wrote. “These wide ranging removals of online speech will negatively impact diverse communities in particular, including LGBTQ people, whose posts are disproportionately labeled erroneously as sexually explicit.”
Graham’s bill dealing with Section 230 is just one of the Senate measures.
Sens. Richard Blumenthal, D-Conn., and Marsha Blackburn, R-Tenn., last week reintroduced an online safety bill that would require social media platforms to provide children with default safeguards to let them opt out of automated systems that recommend content based on personal data and to limit features that encourage them to stay on the platform. The bill has more than 30 co-sponsors.
“Eating disorders, bullying, sexual harassment, substance abuse — all of it is driven at children by blackbox algorithms that are there by design,” Blumenthal said last week at a virtual news conference. “And the design is a business model that essentially aggravates feelings of anger, sadness and other emotions that make the content more addictive.”
The Senate Commerce, Science and Transportation Committee last year favorably reported an earlier version of the legislation.
But Sen. Ron Wyden, D-Ore., used a press event last week to note his wariness of Republican governors’ use of a provision in that legislation that would allow states to sue platforms that violate the bill’s requirements. Wyden singled out Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott.
“Giving extremist governors the power to decide what content is safe for kids is a nonstarter. Ron DeSantis and Greg Abbott are using every bit of power they have to go after queer and trans kids, censor information about reproductive health and scrub basic history about race in America. I’m not about to give them even more power,” Wyden said.
Senate Judiciary Chair Richard J. Durbin, D-Ill., has his own bill that would enable child pornography victims to sue an internet company that made the material available and would establish a board within the Federal Trade Commission to resolve complaints if a platform fails to take down such material.
The panel delayed a vote on Durbin’s bill last week and has put it on the markup schedule for Thursday. Durbin sought to rally his colleagues to the cause last week to overcome Graham’s reference to opponents’ power.
“We can have these hearings after hearings after hearings. We can hear all the victims and all the surviving parents tell these terrible stories. We can imagine them among our own children and grandchildren,” he said. “But then if we step back and say this is just too big and complicated and we’re against too big of a situation here, we can’t change it, shame on us!”
When the panel meets again on Thursday, it will take up other bipartisan measures that address similar issues.
One bill, sponsored by Sen. Amy Klobuchar, D-Minn., and co-sponsored by Sen. John Cornyn, R-Texas, would make it illegal to distribute a “visual depiction of a nude minor.”
Another bill, this one sponsored by Cornyn and co-sponsored by nine others from both parties, would reauthorize the Justice Department’s Project Safe Childhood program to coordinate federal, state and local resources to identify and prosecute individuals who exploit children online and assist victims.
Sen. Brian Schatz, D-Hawaii, the sponsor, and Sens. Tom Cotton, R-Ark., Christopher S. Murphy, D-Conn., and Katie Britt, R-Ala., all co-sponsors, want to go further with a bill that would ban children under 12 from having social media accounts and require 13- to 17-year-olds to have parental consent.
Two states, Utah and Arkansas, have enacted legislation that would limit children’s online access and social media use. Those efforts are adding to the pressure on Congress but don’t necessarily make it any easier to agree on legislation.
The Schatz bill raises yet another thorny question: Does verifying ages give the tech companies the ability to collect even more data?
Blumenthal and Blackburn said at their news conference that requiring social media companies to verify users’ ages would result in more personal information being collected. Blackburn called it “a data breach waiting to happen.”
Sen. Josh Hawley, R-Mo., may have the most far-reaching bill, a measure that would require social media companies to verify that anybody opening an account is at least 16 years old. His bill doesn’t have any co-sponsors.
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