On Thursday, Two Democratic senators introduced a bill to strip the liability protection that Big Tech platforms enjoy under Section 230 of the Communications Decency Act … if the tech platforms promote “health misinformation” during a public health crisis. Given the Democrats’ ever-expanding view of what constitutes a “public health crisis,” and the politicization of claims about misinformation, this bill seems particularly ripe for abuse.
Sens. Amy Klobuchar (D-Minn.) and Ben Ray Luján (D-N.M.) introduced the Health Misinformation Act, which would create a specific carveout in Section 230 to hold social media platforms liable for algorithmically-promoted health misinformation. Section 230 protects Big Tech companies from legal liability for the user-created content they host. While Republicans and conservatives have long warned against Big Tech censorship — that social media companies remove conservative posts — Democrats and liberals fault tech companies for not removing enough content.
“For far too long, online platforms have not done enough to protect the health of Americans,” Klobuchar said in a statement. “These are some of the biggest, richest companies in the world and they must do more to prevent the spread of deadly vaccine misinformation.”
Klobuchar presented her bill as a “long term solution.”
“Earlier this year, I called on Facebook and Twitter to remove accounts that are responsible for producing the majority of misinformation about the coronavirus, but we need a long term solution. This legislation will hold online platforms accountable for the spread of health-related misinformation. The coronavirus pandemic has shown us how lethal misinformation can be and it is our responsibility to take action,” she added.
The bill would amend Section 230 to state that “a provider of an interactive computer service shall be treated as the publisher or speaker of health misinformation that is created or developed through the interactive computer service during a covered period if the provider promotes that health misinformation through an algorithm used by the provider (or similar software functionality), except that this subparagraph shall not apply if that promotion occurs through a neutral mechanism, such as through the use of chronological functionality.”
The carveout would only apply during a “covered period,” which means “a period during which a public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act, including a renewal of any such declaration, is in effect.”
The bill directs the Secretary of Health and Human Services (HHS) to consult with other federal agencies and outside experts and issue guidance “regarding what constitutes health misinformation.”
Contrary to the legacy media narrative, vaccine hesitancy and the kind of “misinformation” that Klobuchar intends to target are not exclusively right-wing phenomena. Many Democrats — emphatically including Joe Biden and Kamala Harris — expressed skepticism about any COVID-19 vaccine that might emerge from the Trump administration, apparently for crass political reasons. Furthermore, a Massachusetts Institute of Technology study found that vaccine hesitancy is “highly informed, scientifically literate,” and “sophisticated.”
The Biden White House has bragged about working with Big Tech to silence misinformation about COVID-19 vaccines, mentioning a “disinformation dozen” people. On Tuesday, White House Communications Director Kate Bedingfield expanded the misinformation alarm from the “disinformation dozen” to “conservative news outlets.”
Given this trend, it seems extremely unlikely that any Republican would support Klobuchar’s bill.
In fact, conservatives have even more reason to be concerned, considering the fact that the current HHS secretary, Xavier Becerra, has a long track record of promoting leftist social issues and silencing those who disagree. When journalist David Daleiden released sting videos exposing Planned Parenthood staff who admitted to selling aborted baby parts for profit in 2014, Becerra filed 15 felony charges against him. Becerra also vigorously defended a California law that mandated pro-life pregnancy resource centers to advertise for abortion. (The Supreme Court rightly struck down this law in 2018.)
When the Trump administration carved out a religious freedom exemption to avoid forcing the Little Sisters of the Poor to pay for contraception under the Obamacare mandate, Becerra sued the Trump administration, attempting to make sure the federal government kept forcing the nuns to violate their consciences. Becerra also sued the Trump HHS after the agency reversed an Obama administration rule that twisted the meaning of “sex” in order to force health care providers to encourage experimental transgender “treatments” like cross-sex hormones and surgery. Becerra sued to force transgender ideology on the federal government.
Given Becerra’s radical stances on abortion and transgender issues, which he and others on the Left push as matters of “health care,” it seems he may interpret “health misinformation” broadly, to encompass leftist social policy.
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Furthermore, Democrats who caught a taste for COVID emergency powers seem intent on declaring “public health emergencies” on other issues. Gov. Andrew Cuomo (D-N.Y.) declared a public health emergency on gun violence. Democrats in Congress have filed a bill to declare a national emergency on climate. Salt Lake City Mayor Erin Mendenhall just declared racism a public health emergency.
In the extremely unlikely event that Democrats pass this bill, how long would it be before Becerra declared a “public health emergency” on transgender suicide, found that any dissent on transgender identity is “health misinformation,” and threatened to remove Section 230 protections from any tech platform that “promoted” skepticism or opposition? Becerra may find a way to declare Republican efforts to protect unborn babies a “public health crisis” on abortion, and pressure Big Tech platforms to strangle the reach of any pro-life content.
It seems extremely unlikely that Republicans will go for Klobuchar’s bill, and even more unlikely that Sens. Joe Manchin (D-W.V.) and Kyrsten Sinema (D-Ariz.) will abandon their support for the filibuster for this particular piece of legislation. Even so, conservatives need to be alert to threats like this.