Sen. Josh Hawley (R-Mo.), a rising conservative leader, and Senate Democratic Whip Dick Durbin (Ill.), a veteran liberal dealmaker, have teamed up to advance legislation through the Senate Judiciary Committee that would expose big tech companies to legal liability for child pornography posted on its sites.
The bill, the Strengthening Transparency and Obligation to Protect Children Suffering from Abuse and Mistreatment (STOP CSAM) Act, would limit tech companies’ legal immunity under Section 230 of the Communications Decency Act, which broadly protects social media platforms from being sued for the material people post to their sites.
“It creates a right to sue for victims that can get into court and sue the tech companies. It penetrates the Section 230 shield, and it’s an unlimited right to sue — punitive damages, compensatory damages,” Hawley told The Hill.
“I predict the tech companies will now come after it big time because it would be the first time we’ve had something like this where they can be held liable,” he said.
Sunsetting tech companies’ broad legal immunity under Section 230 has been a goal of conservative critics of “Big Tech” for years.
The issue came to a boil in December 2020 when President Trump vetoed the National Defense Authorization Act because it did not include language repealing Section 230.
Trump at the time blasted the legal protection as “corporate welfare” and wanted to strike back at tech companies, such as Facebook and Twitter, over what he viewed as their unfair treatment of conservative political views.
But some Democrats favor stripping away some of the tech companies’ legal protections to crack down on hate speech, media of child sexual abuse and other offensive material.
Durbin said Thursday the federal government needs to intervene to stem the flood of child pornography online.
“The system is failing our children and we, as lawmakers, need to address this head-on,” he said. “I’m pleased that my Judiciary Committee colleagues unanimously supported the STOP CSAM Act in committee today. The legislation is a comprehensive approach to close gaps in the law and crack down on the proliferation of child sex abuse material online.”
The measure passed the Senate Judiciary Committee unanimously Thursday morning after Hawley and Durbin agreed to final amendment language and appeared to catch some members of the panel by surprise.
Sen. Alex Padilla (D-Calif.), an ally of the tech community, voted for the legislation but offered a caveat that he didn’t have a lot of time to review its details.
Padilla said he “absolutely” agrees with the “spirit of the legislation” but highlighted what he described as “outstanding questions.”
“Still reviewing the changes that you and Sen. Hawley agreed to. We got the language just this morning,” the California senator told Durbin.
Durbin approached Hawley in February about teaming up on his STOP CSAM bill after Hawley grilled Judge Ketanji Brown Jackson, President Biden’s first nominee to the Supreme Court, last year over what Republicans viewed as her lenient sentencing of child pornography offenders.
“Months ago, back in February, Durbin approached me and said, ‘Do you want to work on this issue?’ and I said yes,” Hawley said. “He and I have gone back and forth on this a lot since the [Jackson] hearings last year, where this was a big issue.
“I told him then that I think the most important thing is to create a private right of action for individuals to sue the companies with no limits,” Hawley explained.
“That was not in his bill at the time,” he added. “His bill had a notice and takedown provision, where you could go to the government and you could say, ‘This is child porn, I want to take it down,” and the government could then order the companies to take it down, and if they don’t, could fine them.”
Hawley said that was the core of Durbin’s bill and is still part of the legislation, authorizing the Federal Trade Commission to order tech companies to remove child sexual abuse material from its sites.
“I said to him I don’t think that’s not enough of an incentive for these companies. I think you’ve got to really pound them and the way to do that is to let people sue,” he said.
A committee aide said the bill as amended by Hawley creates a civil cause of action that victims can bring against online providers that intentionally host child sexual abuse material or make it available online, and it makes clear that Section 230 does not bar such action.
The aide said if Congress passes and Biden signs the bill, it would be the first time Congress created explicit statutory authority for victims to sue online platforms and app stores for a range of child sexual exploitation.
Now the big question is whether Senate Majority Leader Chuck Schumer (D-N.Y.) will schedule the bill for a vote on the Senate floor and risk serious pushback from tech companies.
Schumer said in December he would be open to reforming tech companies’ liability protections.
“I’ve always said that Section 230 is something that we should look at. The difficulty there is coming up with the right solution, but it’s something I’d be open to looking at,” he told reporters at the time.