The next House member representing Silicon Valley wants to change a key piece of federal law that shields internet companies like X, Facebook and Snapchat from lawsuits over content their users post. That protection is considered the lifeblood of social media.
The top eight Democratic candidates vying to succeed Democratic Rep. Anna Eshoo in her very blue district agree that something has to change with Section 230 of the Communications Decency Act, which was created in 1996, back when lawmakers shied away from doing anything that could limit the growth of the industry. Their unanimity is a sign that Eshoo's successor won't be a tool for the hometown industry. At least not on this issue.
The challenge is what to do next. Whoever is elected, their actions as the voice of Silicon Valley will carry outsize weight in Congress. They can lead the charge to actually do something to clean up the bile on social media.
We've seen enough theatrical preening about the issue in Washington. The latest production happened this week, when top tech CEOs came before Congress for their annual public-flogging-without-real-consequences visit.
If anything, the hearing showed how the drive to change liability protections has become a rare point of bipartisan agreement — and frustration.
"You and the companies before us, I know you don't mean it to be so, but you have blood on your hands," Sen. Lindsey Graham, R-S.C., told Meta CEO Mark Zuckerberg at the Senate Judiciary Committee hearing on stopping online child sexual exploitation. After unanimously passing five bills on the issue, Graham said, "this committee is done talking."
Democratic Sen. Amy Klobuchar of Minnesota agreed. "Nothing is going to change unless we open up the courtroom doors. I think the time for all of this immunity is done because I think money talks even stronger than we talk up here. We should do something finally about liability," Klobuchar said.
Railing about Section 230 used to be the province of Republicans, who alleged it was why social media platforms treated conservatives unfairly. Then-President Donald Trump once threatened to veto the National Defense Authorization Act, the annual defense funding bill, if it didn't revoke Section 230. That didn't happen.
Democrats have joined them, largely because of how they believe it frees the platforms from facing any consequences for what happens on their sites. At this week's hearing, California Sen. Laphonza Butler encouraged Snapchat CEO Evan Siegel to apologize to the parents of two 16-year-olds who lost their sons to drug overdoses after buying pills on Snapchat.
"What do you say to those parents?" Butler said.
The desire to make social media platforms saner and safer is being echoed by the top candidates in the 16th Congressional District, which includes parts of San Mateo, Santa Clara and Santa Cruz counties.
"As a mom of two," Palo Alto City Council Member Julie Lythcott-Haims, the only woman running to replace Eshoo, told me, "I support reforming Section 230. Corporations have to be held accountable for the harm they inflict."
Former San Jose Mayor Sam Liccardo wants it changed, too, and he's said he doesn't buy the industry's long-standing contention that altering Section 230 would stifle innovation. That argument might have worked when Facebook was a startup. Not now, when Meta's market cap is $1.2 trillion — with a "t."
"While Section 230 has supported the growth of the innovation economy, the time for thoughtful reform appears long overdue," Liccardo said.
So now what? That's the problem Eshoo's successor will face. How do you change it? And how do you do so without hurting the hometown industry?
"Eshoo's district is filled with voters who work at companies that depend on Section 230," said Eric Goldman, a longtime defender of Section 230 who is a professor of law at Santa Clara University and co-director of its High Tech Law Institute. "I would expect the district's representative to understand and defend the critical role Section 230 plays in the district's economy."
The candidates start to differentiate themselves when it comes to what to do next. Or they don't have a specific answer.
Rishi Kumar, a Democratic candidate from Saratoga, told me that "removing the liability protections of Section 230 will compel platforms to take content moderation more seriously and do more to protect their end users from illegal activities and disinformation."
But the companies have hired thousands of content moderators, and little has changed.
Assembly Member Evan Low said if elected, he would like to see a revised Section 230 include "an ability to get a court order to remove content if there is imminent incitement of violence. Right now Section 230 immunity is so broad that social media platforms don't have to take that down even under the Brandenberg standard" — the Supreme Court case that allows someone to be punished for inflammatory speech if it is intended to incite unlawful violence and that violence is imminent.
But Goldman, the law professor, disagreed. If a post was "truly an incitement to violence," he said, "it's not protected by the First Amendment, and it would constitute a federal crime."
Peter Dixon, who served in the Obama administration, told me he would like to see more journalistic-style guardrails for digital platforms, much like in traditional media. They would be held more accountable for content their algorithms select and amplify, not content that is simply posted to their platform.
Goldman said applying journalistic standards would create "a complete restructuring of the entire internet ecosystem. In other words, one of the beauties of the internet has been that it's enabled people who are journalists to still be able to share their ideas and share their content."
This is the challenge facing the next House member from Silicon Valley. The good news is that they will have bipartisan support to address the bile and disinformation online. The bad news is that finding the right solution will still be hard.
Ask Eshoo, who said that Section 230 "cries out for reform, and Congress must reform it." She's tried for years. Now, it will be up to her successor to figure out how to do something beyond just publicly shaming tech execs.
That's good theater, but it's a tired act.
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