With the change in administrations in Washington, there has been a drive to enact or amend legislation in a variety of areas. However, most initiatives lack the zeal found with the bipartisan interest in “reining in social media” and pursuing reforms to Section 230 of the Communications Decency Act (CDA).  As we have documented,, the parade of bills and approaches to curtail the scope of the immunities given to “interactive computer services” under CDA Section 230 has come from both sides of the aisle (even if the justifications for such reform differ along party lines). The latest came on February 5, 2021, when Senators Warner, Hirono and Klobuchar announced the SAFE TECH Act.  The SAFE TECH Act would limit CDA immunity by enacting “targeted exceptions”  to the law’s broad grant of immunity.

As laid out bill summary, the SAFE TECH Act’s main provisions would limit CDA immunity for:

  • Actions related to advertisements or other paid content
  • Actions seeking to enforce civil rights laws, anti-cyberstalking and harassment laws, antitrust laws and human rights violations (e.g., Alien Tort Claims Act), as well as suits for wrongful death
  • Actions seeking injunctive relief where a misuse of a provider’s service is likely to cause irreparable harm

As we’ve previously commented, critics of the CDA raise serious concerns.  However, despite what are presumably the best of intentions, any legislative attempt to excise harmful content from the web will not be easy.  The risk is clear: every new carve-out carries with it the potential for unintended consequences or loopholes to be exploited.  The SAFE TECH Act is no exception.  A review of the proposal raises many questions, leaves unaddressed some of the more troubling issues that have arisen under the CDA over the years, and presents challenges for legitimate businesses that rely on the CDA to escape from frivolous and expensive litigation.

Given the other pressing issues on Congress’s agenda, CDA reform isn’t likely going to be taken up anytime soon; the SAFE TECH Act is just the latest CDA-reform proposal that seeks to add to the larger debate over how Congress might reach consensus over regulating internet platforms without curtailing online innovation. With the start of a new Congress, more bills are expected to be introduced (or re-introduced) soon. Still, given the bipartisan undercurrent to do something about the excesses of the web, some changes are likely afoot for CDA Section 230. We will be watching the debate closely.

Photo of Jeffrey Neuburger Jeffrey Neuburger

Jeffrey Neuburger is a partner, co-head of the Technology, Media & Telecommunications Group, a member of the Privacy & Cybersecurity Group and editor of the firm’s New Media and Technology Law blog.

Jeff’s practice focuses on technology, media and advertising-related business transactions…

Jeffrey Neuburger is a partner, co-head of the Technology, Media & Telecommunications Group, a member of the Privacy & Cybersecurity Group and editor of the firm’s New Media and Technology Law blog.

Jeff’s practice focuses on technology, media and advertising-related business transactions and counseling, including the utilization of emerging technology and distribution methods in business. For example, Jeff represents clients in online strategies associated with advertising, products, services and content commercialized on the Internet through broadband channels, mobile platforms, broadcast and cable television distribution and print publishing. He also represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements.

Serving as a collaborative business partner through our clients’ biggest challenges, Jeff is part of the Firm’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team helping to shape the guidance and next steps for clients impacted by the pandemic.