New legislation proposed by Sen. Amy Klobuchar (D-MN) aims to stop the spread of health misinformation. But could it ultimately make the problem worse?
Sen. Amy Klobuchar (D-MN) on Thursday unveiled new legislation which attempts to curb the spread of health misinformation on social media platforms like Facebook and Twitter.
Introduced with cosponsor Sen. Ben Ray Luján (D-NM), Klobuchar's proposal would strip internet companies of liability protections for certain types of health misinformation shared on their platforms, reshaping a central tenet of American internet law that shields websites from being held liable for users' content posted on their sites.
"For far too long, online platforms have not done enough to protect the health of Americans," Klobuchar said in a statement.
"As COVID-19 cases rise among the unvaccinated, so has the amount of misinformation surrounding vaccines on social media," Luján added. "Lives are at stake."
Public health experts agree that misinformation about the coronavirus pandemic, and vaccines specifically, have contributed to recent spikes in virus cases across the United States, with the surgeon general last week issuing a formal advisory that combatting misinformation is "critical for the long-term health of our nation."
But internet law experts and free speech advocates warn that Klobuchar's proposal is unlikely to accomplish what it sets out to do, and could have unintended consequences that ultimately make the problem worse.
"It's unlikely this bill would change the current status of health misinformation on internet services," said Eric Goldman, a professor of law at Santa Clara University School of Law and co-director of the High Tech Law Institute.
Klobuchar and Luján's bill, named the Health Misinformation Act of 2021, works by amending the landmark internet law known as Section 230, a provision of the 1996 Communications Decency Act.
That statute says that in most cases, websites are not liable for third-party content posted on their platforms; in other words, Facebook is only legally responsible for the content that Facebook itself creates and not what its 2.8 billion users worldwide post to it.
"That general principle has become the foundation of our modern internet," said Goldman, who has studied, taught, and written about internet law — and Section 230 specifically — since the mid-1990s.
"If we think about the services that we use on a daily, hourly, even minute-by-minute basis, many of those services enable us to talk to each other, and Section 230 is the legal foundation that enables that service to facilitate the conversation," Goldman explained.
Klobuchar's proposal would create an exception to that framework, according to draft text of the legislation obtained by the American Independent Foundation, such that internet providers would be "treated as the publisher or speaker of health misinformation" posted on their platforms.
But this change would only apply in certain situations. Websites would be liable for health misinformation only during times when the secretary of health and human services had declared a "public health emergency," as then-HHS Secretary Alex Azar declared in January of 2020 for the coronavirus pandemic.
Websites would also only be liable for content that was promoted on their platforms via an algorithm, and not for posts that were promoted "through a neutral mechanism" like a social media feed displaying posts chronologically, according to the draft text.
Moreover, the bill doesn't define what "health misinformation" actually is, leaving that determination to the HHS secretary, who'd be required to come up with a definition within 30 days of the law's passage.
There's no question that health misinformation, particularly about the pandemic, is pervasive on social media.
A recent report from the Center for Countering Digital Hate, cited in the new bill, found that just 12 individuals are responsible for sharing up to 65% of anti-vaccine content on social media.
The White House in recent days has ramped up its rhetoric against health misinformation about the pandemic, with President Joe Biden telling reporters that misinformation on social media was "killing people."
"The only pandemic we have is among the unvaccinated. And they're killing people," Biden said last week in response to a question about Facebook, though he later walked those comments back to note that misinformation on social media platforms was what was killing people and not Facebook itself.
"My hope is that Facebook, instead of taking it personally — that somehow I'm saying Facebook is killing people — that they would do something about the misinformation, the outrageous information about the vaccine," Biden said later. "That's what I meant."
Misinformation about public health falls into the category of speech that Goldman describes as "lawful but awful" content. The First Amendment ensures Americans' ability to say and post most anything, even speech that could be dangerous or misleading.
As such, even if Klobuchar's proposal were enacted into law, it's unclear who would have standing to bring a lawsuit against websites where the misinformation was spread.
"If there is no liability for health misinformation, removing Section 230's shield doesn't change anything," Goldman said bluntly.
"If this information is lawful content, then the government really can't do much about it. In fact, if it tries, that's called censorship," Goldman said.
The Electronic Frontier Foundation, which advocates for privacy and free speech rights online, was similarly critical of the bill.
"We agree that users should have much more control over the content they see online. However, Congress creating vague and almost certainly unconstitutional carve-outs to Section 230 is not the best way to tackle this problem," EFF Director of Federal Affairs India McKinney told the American Independent Foundation in a statement.
"[I]f policymakers really wish to improve online expression, it should be laser-focused on promoting interoperability and competition in general, so that users have a wide range of choices."
For Democrats, critiques tend to hinge on the desire to have more content removed from social media sites, urging companies to better moderate things like harassment, discrimination, or misinformation.
Republicans, conversely, tend to want sites to remove less content, alleging conservative censorship, a claim that has been debunked by media fact-checkers, and angered by companies' steps to remove malicious actors.
Amid one dust-up over Section 230, when former President Donald Trump threatened to veto a major defense bill unless the law was revoked, many Democrats were fierce defenders of it.
Sen. Ron Wyden (D-OR), one of the original authors of the law, wrote, "Section 230 gives sites, speakers and readers choices, and ensures that those choices will survive the hostility of those with power."
"It would be a terrible mistake to do away with it, especially now," Wyden added.
A representative for Wyden did not immediately respond to an inquiry about whether he was supportive of Klobuchar's proposal.
But given the bipartisan criticism of the law, some fear a "Frankenstein solution," whereby Democrats and Republicans team up to amend the law, incorporating elements of all their critiques.
"Democrats are trying to get internet services to remove lawful but awful content. And the Republicans are trying to do it by taking away the editorial discretion of internet services to fight lawful but awful content," Goldman said.
"So if you combine the two different partisan ideas, you get a censorship extravaganza," Goldman warned.
Published with permission of The American Independent Foundation.