Facebook Is Bad. Fixing It Rashly Could Make It Much Worse.

The nicest thing you can say about the Health Misinformation Act, proposed in July by the Democratic senators Amy Klobuchar and Ben Ray Luján, is that it means well. The internet has been a key accelerant of widespread myths, misunderstandings and lies related to Covid-19; Klobuchar and Luján’s bill would force online companies like Facebook to crack down on false information during public health emergencies, or lose immunity from lawsuits if they don’t.

There’s only one problem: What is health misinformation? I know of no oracular source of truth about Covid-19. Scientific consensus has shifted dramatically during the pandemic, and even now experts are divided over important issues, such as whether everyone should get a vaccine booster shot. Klobuchar and Luján’s bill elides these complications. Instead they designate an all-knowing authority: Health misinformation, the bill says, is whatever the secretary of health and human services decides is health misinformation.

I’m sorry — what? Have the senators forgotten that just last year we had a president who ridiculed face masks and peddled ultraviolet light as a miracle cure for the virus? Why would we choose to empower such a president’s cabinet appointee as the arbiter of what’s true and false during a pandemic? And not just a pandemic — since the law defines a public health emergency so broadly, I wouldn’t put it past a science-averse future secretary from attempting to declare discussions about abortion, birth control, transgender health or whatever else as “misinformation.”

Klobuchar and Luján’s bill is one of many plans that attempt to curb the power of tech companies by altering Section 230 of the Communications Decency Act, the much-hated and much-misunderstood 1996 rule that affords websites broad immunity from liability for damage caused by their users. Proposals from Democratic lawmakers tend to call on tech companies to delete or demote false content in order to retain Section 230 immunity; proposals from Republicans generally do the opposite, threatening to undo immunity if tech companies censor content “unfairly” or “in bad faith.”

The plans from both sides fill me with deep dread. Many legal experts argue that many Section 230 proposals, including the Klobuchar-Luján bill, likely violate the First Amendment, which makes it extremely difficult for Congress to dictate to private companies and their users what people can and can’t say online. At best, then, the proposals to reform Section 230 might amount to little more than a performative gesture, a way for lawmakers to show they’re doing something, anything, about the runaway powers of tech giants.At worst, though, these plans may backfire catastrophically. Rather than curbing the influence of Big Tech, altering Section 230 might only further cement Facebook and other tech giants’ hold over public discourse — because the giants might be the only companies with enough resources to operate under rules in which sites can be inundated with lawsuits over what their users post. Smaller sites with fewer resources, meanwhile, would effectively be encouraged to police users’ content with a heavy hand. It is no accident that Facebook has been telling lawmakers that it welcomes reforms to Section 230 — while smaller sites like Etsy and Tripadvisor are nervous about the possibility.