I have been thinking for a while that the save-the-open-Internet movement needs to present its own bill that can be advertised as “Section 230 reform”. Defang the opposition! Don’t like holding onto a law from 1996? Well, here’s an update that we can just whip out of our back pocket that holds Big Tech accountable for real!

I actually tried writing one. Compared to the existing law, it adds some new findings and expands (c)(1) to clarify that Zeran v. AOL was decided correctly. There’s a gate in the liability shield, which is the kind of thing that Senators really want to see, but it can’t be met frivolously. And there’s a provision that would allow going after platforms for privacy violations. (Many people have called for an exception for “algorithms”, by which they mean targeted recommendation systems. But those existed in 1996, people knew about them when 230 was first written, the definitions in 230(f) include them, and Cox and Wyden themselves have said that at least some of them are covered. Looking at what’s actually changed since the ’90s, the big change is the adoption of surveillance.) The new (c)(1)(C) is an anti-“jawboning” provision that restates First Amendment precedent and is phrased to get politicians who have made a big deal about that (for varied reasons) on board. In the SESTA/FOSTA part, the language about “facilitating” is replaced with “aiding and abetting”, to bring it in line with Woodhull v. US, which upheld the constitutionality of SESTA/FOSTA by narrowing its scope. I’d like to see SESTA/FOSTA repealed, but in practical terms, clarifying it to cover what the DC Circuit said it is allowed to cover is the best we can hope for.

So, yeah, when politicians talk about “repeal”, why not come back at them with “reform”, and why not take the opportunity to argue for something better?