She is fed up with Facebook’s failure to control the spread of health misinformation on its social network. Last week, she introduced a bill to do something about it. Under her proposal, Facebook will lose its immunity from lawsuits under Section 230 of the Communications Decency Act if it algorithmically promotes health misinformation, as defined by the Department of Health and Human Services (HHS), during a health crisis.
It is vital to understand that Klobuchar’s proposal does not make it illegal for Facebook or any other tech company to distribute health misinformation on their systems. Under the bill, HHS would be authorized to define what counts as health misinformation, but the bill would not make it a violation of law to distribute material meeting that definition.
Instead, she proposes that if an underlying law makes it illegal to distribute heath misinformation, then a lawsuit against Facebook or any other company could proceed by alleging violation of that law. Previously, Facebook and other tech companies would have had immunity from any such lawsuit under Section 230 of the Communications Decency Act.
Of course, there is no such underlying law that bans the distribution of health misinformation. It is perfectly legal to distribute health misinformation today, and it will continue to be legal to distribute it if the bill were to become law tomorrow. If there were an underlying law making the distribution of health misinformation illegal, a lawsuit against Fox News alleging violation of this law would have been filed a long time ago.
But no such lawsuit against Fox has materialized because there is no cause of action against a media company for reportedly distributing health misinformation. If Senator Klobuchar’s bill became law, neither Facebook nor any other tech company would have anything to fear. Legally, the proposed law is an empty gesture.
So, what’s going on? In policy terms, this is an effort to shame Facebook into doing more to suppress dangerous misinformation. Senator Klobuchar is also making a political point. Like President Biden, she is seeking to convince the progressive elements of the Democratic base that this Administration and Congress are on board for their tech regulatory agenda. It is part of the same signaling that made Lina Khan head of the Federal Trade Commission and Jonathan Kanter the nominee to lead the Antitrust Division.
Mark MacCarthy
