Committee Talks Sunsetting Section 230 to Prompt Action by Big Tech

Yesterday, the House Energy & Commerce Committee held a hearing to discuss draft legislation that would sunset Section 230 of the Communications Decency Act on December 31, 2025. If passed, the law would start a countdown toward abolishing Section 230 with the real intent to force Big Tech to cooperate on meaningful reform. Said reform would seek to mitigate the worst harms facilitated by misapplication of the law as a blanket liability shield for online service providers (OSPs) who host user generated content (UGC).

The Committee heard from witnesses Carrie Goldberg, a prominent attorney for victims of cybercrime; Marc Berkman, CEO of Organization For Social Media Safety; and Kate Tummarello, Executive Director of Engine, an advocate for “pro-startup and pro-innovation policy.” Goldberg and Berkman testified in favor of the sunset proposal, and Tummarello testified against the bill, though she stated more than once that her constituents are not opposed to Section 230 reform.

Thus far, most congressional hearings about “holding online platforms accountable” have been political theater, and this hearing was no different, other than the fact that the sunset proposal is overtly theater. Committee members acknowledge that the goal is not to abolish Section 230, or at least not its original intent, but we shall see whether the sunset bill becomes law and, if so, whether it compels the tech giants to negotiate in good faith.

In the meantime, it would help if Congress would stop echoing Big Tech’s main talking point—namely that Section 230 is about free speech, let alone speech neutrality. While most Committee Members reflected understanding about the serious harms facilitated by the erroneous application of Section 230, a few Members made parenthetical comments about protecting speech, and Rep. Harshbarger (R-TN) opined that “liberal sites like Facebook” censor “conservative” content.

Aside from this recurring allegation being unfounded in fact, Section 230 has nothing to do with the speech right or with viewpoint neutrality. Indeed, if it did—if Congress wrote a law mandating content neutrality, THAT would be a violation of the First Amendment. As Goldberg stated during questioning, “The platforms are free to moderate however they want.” So, every time Congress mentions speech in context to Section 230, it only amplifies Big Tech’s big lie that their platforms are an “engine of free expression,” which is unhelpful to sensible amendment of the law.

To clarify that point, yes, platforms host a lot of expression, but the OSPs are not bound to foster content neutrality by the First Amendment, and they do no such thing by operation of their sites. It is a matter of record that the social platforms adjust their algorithms to push or demote content for users based on user behavior in a constant and dynamic interplay between the two. The goal of these operational decisions has nothing to do with the speech right—indeed one can argue they stifle speech in several ways—and everything to do with maximizing profitability for the platform.

Next, it would be great if Congress could keep its eye on the ball and remember that Section 230 reform is not about creating new direct liability for all online platforms for harm done by users. To put it bluntly, Section 230 reform is about instructing the courts to stop tossing out every claim and every prayer for injunctive relief, solely on the basis that the statute requires this result at summary judgment. That was never the intent of the law, but the courts’ conclusions to the contrary demand that Congress act.

Nevertheless, during Q&A with witnesses, some Members seemed either to mischaracterize 230 reform as new regulation or as opening the door to a flood of direct liability claims. Here, Tummarello, as a representative for startups, stressed the fact that small companies cannot compete with the giants by moderating every post and comment on their sites. Frankly, the tech giants can’t achieve this goal either, but this is part of the theater because the concern is only relevant if Section 230 is indeed abolished.

By contrast, reforming the law does not need to oblige every platform to catch every potentially harmful bit of content. Indeed, sensible and workable reforms have been proposed by, for instance, Danielle Keats Citron recommending small but significant changes to the language. The goal is to retain the original intent to shield “Good Samaritans” against wanton lawsuits while directing the courts to find that relevant facts can void the liability shield.

For example, one of Carrie Goldberg’s high-profile cases involved a man named Juan Gutierez who used the dating app Grindr to target Matthew Herrick for harassment, abuse, and physical violence. Gutierez created a fake account pretending to be Herrick and invited random men to find him and fulfill his “rape fantasies.” Section 230 has nothing to do with the conduct of Gutierez, who was convicted for his crimes, but the law shielded Grindr from even going to court, despite Goldberg presenting evidence that volitional conduct by the platform caused and exacerbated the harm to Herrick. In short, Goldberg et al. are simply asking Congress to instruct the courts to allow meritorious claims against OSPs to be litigated—just as with any other defendant operating any other type of business.

Equally frustrating in this regard is the importance of injunctive relief, and I was surprised not to hear it come up during the hearing. Amid all the talk about Section 230 “fostering innovation” by shielding startups from a flurry of lawsuits, people lose sight of the fact that a platform need not be directly liable, or even a named party to a suit, to simply do the right thing and remove harmful material upon request. Unfortunately, the culture and profit motives of OSPs too often resists removing any material ever, and Section 230 has prevented courts from ordering those removals to mitigate harm to victims.

Presumably, there will be some wailing and teeth-gnashing from the usual suspects who defend the status quo of the “internet as we know it.” The EFF already groused about the sunset proposal ahead of the hearing, and we’ll see who else joins that peanut gallery. Either way, it is frustrating to know that meaningful reform can be achieved by changing a few key words in the statute—words that would maintain the original intent of Section 230 but which would stop protecting platforms over people. As Carrie Goldberg testified, the Seventh Amendment demands that victims of sexual abuse, trafficking, drug-related scams, harassment, and other devastating harms must all have their day in court.

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TikTok Exploits a “Target-Rich Environment” for Drug Scams According to DCA Report

TikTok may be the perfect crucible in which to exploit the frailties of negative body image and then breed scammers who con millions from people looking to obtain drugs for weight-loss. According to a report released today by Digital Citizens Alliance (DCA), a joint investigation with the Coalition for a Safer Web found at least sixty operators, several posing as pharmacies or medical professionals, fraudulently offering to ship the antidiabetic drugs Ozempic or Mounjaro or the weight-loss drug Wegovy.

From report “Ozempic Scams on TikTok: The only thing likely to get lighter is your wallet.”

“The moment is tailor-made for scammers to take advantage of American consumers,” says DCA executive director Tom Galvin in its press release. “An estimated one in six people say they take Ozempic or other weight loss drugs and just as many are considering it. That’s a target-rich environment for criminals and other bad actors. It’s alarming that TikTok allows these scammers to operate so freely.”

Big Tech critic Tristan Harris has compared the Chinese version of TikTok to “spinach” and the version used by the rest of the world to “opium” because the safeguards deployed on the former do not exist on the latter. Harris did not literally mean drug pushing with that analogy and was instead referring to the addictive nature of the platform. But it is little surprise that the TikTok algorithm is used to detect users’ interest in weight loss and then bombard them with promises to deliver name-brand drugs without a prescription.

DCA Report Lays Out the Anatomy of the Scam

First, there’s the offer of a month’s supply, usually for about $200-$400. Next the seller insists upon using cryptocurrency or payment apps like Venmo, Zelle, or PayPal and to process transactions as “friends and family” to circumvent refund mechanisms. In some instances, the scammer will inform the customer of a “holdup in customs,” which can be expedited by a one-time payment. And finally, the customer is asked for a screenshot as proof of payment, which then provides the scammer with information that can be used to directly trigger fraudulent transactions. As the report states:

A day after making a payment to these scammers, one of the investigator’s credit cards was compromised. Nearly $2,600 was charged to Hertz Rental Car. In addition, the investigator received a Zelle fraud alert within hours of a purchase.

Naturally, these pharma-cons move around the platform by creating and shedding multiple accounts and identities to evade what little scrutiny TikTok employs to crack down on these activities. This is, of course, familiar territory. In 2011, Google paid a half-billion-dollar fine to the DOJ for ad revenues it received from rogue pharmacies in Canada. In that case, for better or worse, the pharmacies and drugs were often real, but the transactions were illegal. In the TikTok examples, with so many red flag indicators of a scam, one might think that few consumers would fall for these “offers,” but perhaps the intent to misuse a diabetes drug in the first place (a potentially fatal decision) indicates a willful blindness that is every con artist’s dream. The DCA report states:

It can be said that it’s better for Americans to be duped out of their money than to receive drugs – whether Ozempic, opioids, or steroids – that can threaten their health or even their life. But it’s a sad commentary when the “lesser of two evils” is the choice offered to American consumers.

Regardless of consumer awareness, this new report is yet another example of the failed policy of laissez faire when it comes to social media platforms. If the forced sale of TikTok wrests control of the platform from the Chinese Communist Party, that will bring the new owner into the reach of U.S. law, but what U.S. lawmakers then do to protect American citizens is another matter.

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Pass the TikTok Legislation. And then…

“At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.” – Abraham Lincoln, The Lyceum Address, 1838 –

Lincoln’s famous observation that only Americans can truly destroy America speaks to the fragility of the Republic, which the founders knew could only endure so long as the people generally keep faith with certain core principles. Watching those principles assaulted by a far-right populism, which has presently swallowed the Republican Party, it is natural to read Lincoln as prophetic, and it is hard to imagine any foreign influence being more dangerous. On the other hand, when Lincoln said, “It cannot come from abroad,” he could hardly have imagined a time when 170 million young Americans would carry a pocket surveillance device loaded with software under the control of a foreign adversary.

Following the 362-55 vote by the House to force TikTok to divest itself of all ties to the Chinese Communist Party (CCP), opinions about the bill question both its necessity and viability—though not with good reason. Although rashly described as a “ban,” the effect of H.R. 7521 would force a sale of the platform by parent company ByteDance to an owner without ties to the CCP. To that end, I agree with independent musician Blake Morgan. who endorses the TikTok legislation, both as a national security and anti-piracy measure. In an editorial for IP Watchdog, Morgan writes:

The vast majority of music on TikTok generates virtually no revenue for the musicians who made it, and even more music on the platform is completely unlicensed (stolen), copied (stolen via AI), or pirated (stolen). Simply put, TikTok is trying to build a music-based business without paying music makers fair value for the music. That’s why Universal Music Group has already pulled out of TikTok. That’s why the National Music Publishers’ Association has already announced it won’t renew its license with the company. So, TikTok poses “a clear and present danger” to American music, too.

The music piracy alone is reason to force the platform to operate within the reach of U.S. law, but with regard to the national security threat, it is notable that unless one is in the intelligence community, or a Member of Congress receiving a security briefing, we are left to rely upon one of those core principles, which have been eroded by social media in general: trust. I do not endorse the Whatabouist’s view that just because TikTok is not alone in causing havoc that this legislation is moot, but the story does highlight those hazards of social media that make it difficult to convince many Americans that TikTok is a threat of any kind.

Joseph V. Amodio, writing for Tanium, states that TikTok is distinguishable from other platforms thus:

TikTok stands out in its power to manipulate: While videos from any app can go viral, TikTok’s infection ability is unique, given the practice of “heating,” where TikTok staff can supercharge distribution of hand-picked videos. This has huge implications for fair competition and free trade. Just imagine how they can siphon profits by amplifying your competitors’ posts or cooling down your own viral campaigns.

Whether the goal of data manipulation is to pull the levers on enterprise, as Amodio indicates, or to influence young voters on policy matters, how does one convince nearly 200 million 18 – 29-year-olds that said manipulation is both occurring and should be seen as an attack? If an act of cyberwarfare entails hacking the Pentagon or shutting down part of the power grid, enough Americans can probably recognize such events as attacks in a traditional sense. Likewise, the prospect of malicious software injected into millions of mobile devices might be understood as a threat.

But what if the weapon is an insidious propaganda tool used to manipulate the opinions of millions of citizens? Who is going to be trusted to identify that as a sustained attack on the United States? Some portion of the TikTok demographic will not believe that China (or Russia) is an adversary in the first place, which is arguably evidence itself of social media’s power to influence.

Even if the delivery platform is owned by Meta serving “ads” purchased by foreign operatives with the same objective to sow discord, no individual wants to believe he’s being manipulated. More complexly, even if one tries to apply critical thinking, the effort itself is often countered by teams of data manipulators flooding the zone—i.e. the illusion of more “information” tilting bias in one direction or another. This was true before parties like China and Russia upped their cyber game and before they could add artificial intelligence to the toolset.

As a practical example at the heart of the TikTok story, how does the moderate, who would rather not hyper-politicize national security, take the contemporary Republican seriously in his professed opposition to TikTok’s capacity to “manipulate” Americans? For instance, Rep. Ralph Norman of South Carolina writes, “…if you’ve spent 5 minutes exploring TikTok, you should have recognized the addictive nature of this platform. It is designed for one purpose: to control your attention. Their algorithm quickly figures out what kind of videos you’re likely to watch, and then feed you similar videos to keep you fixated.”

Fine. But one could swap “TikTok for “Trump” and make the same general argument, including that his self-interested rhetoric about NATO, disrespect for the Constitution, etc. all comprise a threat to national security. What would Lincoln say to his legacy party about this tangled interplay between foreign and domestic forces, both hostile to American interests, and both weaponizing disinformation through addictive and manipulative platforms?

In this context, it is important to note that Trumpism is a symptom of populism—a trend that is no less prevalent on the left than on the right, perhaps especially among 18 – 29-year-olds. The difference, for the moment, is that the left has not found its own cult-like figure, who might also undermine core principles, albeit in a different style than Trump. The rise in populism in the U.S. and other democracies is a direct result of social media’s nature to factionalize hearts and minds, which is precisely what a foreign adversary wants to achieve. TikTok may be a shrewdly named time-bomb delivered to over half the U.S. population and, as such, should be diffused. But assuming that task can be accomplished, the existential question remains as to whether we can quarantine the most virulent effects of all social platforms or “die by suicide.”

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