June 17, 2021

Volume XI, Number 168

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Group of Democratic Senators Release Latest CDA Reform Bill

With the change in administrations in Washington, there has been a drive to enact or amend legislation in a variety of areas. However, most initiatives lack the zeal found with the bipartisan interest in “reining in social media” and pursuing reforms to Section 230 of the Communications Decency Act (CDA).  As we have documented, the parade of bills and approaches to curtail the scope of the immunities given to “interactive computer services” under CDA Section 230 has come from both sides of the aisle (even if the justifications for such reform differ along party lines). The latest came on February 5, 2021, when Senators Warner, Hirono and Klobuchar announced the SAFE TECH Act.  The SAFE TECH Act would limit CDA immunity by enacting “targeted exceptions”  to the law’s broad grant of immunity.

As laid out bill summary, the SAFE TECH Act’s main provisions would limit CDA immunity for:

  • Actions related to advertisements or other paid content

  • Actions seeking to enforce civil rights laws, anti-cyberstalking and harassment laws, antitrust laws and human rights violations (e.g., Alien Tort Claims Act), as well as suits for wrongful death

  • Actions seeking injunctive relief where a misuse of a provider’s service is likely to cause irreparable harm

As we’ve previously commented, critics of the CDA raise serious concerns.  However, despite what are presumably the best of intentions, any legislative attempt to excise harmful content from the web will not be easy.  The risk is clear: every new carve-out carries with it the potential for unintended consequences or loopholes to be exploited.  The SAFE TECH Act is no exception.  A review of the proposal raises many questions, leaves unaddressed some of the more troubling issues that have arisen under the CDA over the years, and presents challenges for legitimate businesses that rely on the CDA to escape from frivolous and expensive litigation.

Given the other pressing issues on Congress’s agenda, CDA reform isn’t likely going to be taken up anytime soon; the SAFE TECH Act is just the latest CDA-reform proposal that seeks to add to the larger debate over how Congress might reach consensus over regulating internet platforms without curtailing online innovation. With the start of a new Congress, more bills are expected to be introduced (or re-introduced) soon. Still, given the bipartisan undercurrent to do something about the excesses of the web, some changes are likely afoot for CDA Section 230. We will be watching the debate closely.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 47
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About this Author

Jeffrey D Neuburger, Proskauer Rose Law Firm, Technology Attorney
Partner

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law...

212-969-3075
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