▶ 0:26:16Chair Cruz: Good morning, the senate committee on commerce, science, and transportation will come to order. Welcome to the witnesses. Within our lifetimes the internet has impacted nearly every aspect of the world and our daily lives. Especially how we communicate.
▶ 0:26:37Chair Cruz: It was only a short time ago that the speech and newsworthiness was controlled by a handful of tv networks and giant newspaper publishers. If you held a position they didn't want to print, wasn't consistent with their political views, it didn't get said. The internet changed that, allowing anyone to bypass these gatekeepers and shape public opinion with their own views.
▶ 0:27:05Chair Cruz: The internet also created a new way to communicate anonymously at greater scale with blogs, message boards, and comment sections. But with opportunity came legal questions. The law wasn't written for the internet's ease and anonymity.
▶ 0:27:23Chair Cruz: Holding a platform liable for the illegal speech of another person threatened to potentially overwhelm early internet companies with ruinous lawsuits that would predictably result in less online speech. So, washington explicitly adopted a light touch regulatory approach with the enactment of the telecommunications act of 1990 six.
▶ 0:27:49Chair Cruz: Congress included section two ensure that online platforms would not be liable for the illegal speech of another person -- section 230 to ensure that online platforms would not be liable for the illegal speech of another person.
▶ 0:28:07Chair Cruz: Section 230 recognize the internet provided a "forum for a true diversity of political discourse." 30 years later it seems that big tech has now become the new gatekeeper, the new speech police. If you disagree with a particular view, big tech doesn't answer that with more speech. They do not try to persuade. They do not debate.
▶ 0:28:35Chair Cruz: They simply make the view they disagree with disappear. And they silence you. That should scare everyone. What is even more concerning is how the government hijacks big tech's powers to shape online discourse and suppress dissenting views and undermine free speech. This isn't fiction.
▶ 0:29:00Chair Cruz: As I detailed in my report in hearings last year, the biden administration weaponized the agency to bully big tech to censor lawful speech on covid and on the elections. Disproportionately muzzling conservative voices. We should recognize and celebrate how the free market can cause a course correction against big tech censorship.
▶ 0:29:27Chair Cruz: Elon musk's purchase of twitter was one of the most important steps for free speech in decades. It showed the censorship regime is not inevitable, and it can be challenged in the marketplace and shifted to allow the kind of diverse viewpoints section 230 envisioned.
▶ 0:29:52Chair Cruz: Congress must also consider every constitutional tool we have to ensure and prevent social media from harming americans, especially children, while not incentivizing big tech censorship. The take it down act, which I led together with senator klobuchar, demonstrates congress can pass targeted legislation to protect children and adults online.
▶ 0:30:18Chair Cruz: The law prohibits nonconsensual intimate images, including such images created with artificial intelligence, and it creates a process to provide notice and takedown for victims all without amending section 230 or chilling lawful speech protected by the first amendment.
▶ 0:30:41Chair Cruz: I've also introduced several other legislative reforms to actively support free speech online, including the terms act, which stops online platforms from weaponizing their terms of service design was americans and deny them access to essential products and services. I will soon be introducing the jawbone act to stop government agencies from bullying platforms into silencing the american people.
▶ 0:31:08Chair Cruz: The same reasons why congress enacted section 230, to prevent liability for a different person's speech, are still relevant. I'm concerned a full repeal or sunset would leave platforms to engage in worse behavior, more censorship, to protect themselves from litigation.
▶ 0:31:31Chair Cruz: I also don't believe, as some of my colleagues have suggested, that we should use section 230 reform to silence more lawful speech or turn the government into the arbiter of truth. But we should continue to consider if reform of section 230 is needed to encourage and protect more speech online and stop big tech censorship.
▶ 0:31:57Chair Cruz: No government official, regardless of party, should have the power of censorship. I agree with, the best solution for good ideas is speech and for bad ideas is more speech. We don't need brute force because the truth is more powerful. I turn to the ranking number.
▶ 0:32:22Chair Cruz: >> thank you, chairman cruz, and into our witnesses for being here. It has been 30 years since congress passed the communications decency act which included section 230, but since then everything has changed.
▶ 0:32:38Chair Cruz: In 1996 the internet as we know it today was still taking shape and we were still using dial-up modems, pagers, paper maps, dvds weren't available yet, much less smart phones, social media, and ai. The world was a different place and our laws reflected that. In the years since we have come to rely on the internet for basically every part of our lives.
▶ 0:33:03Chair Cruz: We have learned about its benefits and harms from personal experience and have had to keep up with every new iteration of ever-changing technology. Yet, even as people have adapted to the technology, tech companies have demanded that our laws don't change. There is the idea that section 230 is somehow perfectly written 30 years ago as if it is a constitutional provision, the only federal statute that must not be touched. That's preposterous.
▶ 0:33:34Chair Cruz: How we reform law matters, of course, but to suggest that any reform would be catastrophic makes no sense. We are the commerce committee, we reform laws. Nobody thinks the internet, as it currently functions, is without problems. Whether you are a young person who grew up with the internet or an older user figuring their way around, the end that can often be a chaotic place.
▶ 0:34:01Chair Cruz: It's chaotic, depressing, confusing, and given the chance people would love something better. The main reason to be having this conversation about section 230 is that congress can and should respond to changing circumstances. We do it all the time. We reauthorized to the faa every five years even though the concept of flying has changed less in the five years than the internet has changed in the last 30.
▶ 0:34:28Chair Cruz: Similarly we amend and update laws to protect consumers from scams. Often they have used section 230 as an excuse to avoid taking meaningful action to protect users, especially kids, from egregious harm, harassment, abuse, frauds and scams. It not that they don't know that it's happening or even why it's happening, it's to do something about it would hurt their bottom line. As long as federal law provides a shield, why bother? This committee is not powerless.
▶ 0:34:59Chair Cruz: We don't simply have to accept terrible outcomes as a fact of modern life. We can work together and fix the law. I have a bipartisan bill called the internet packed act. Others have amendments to section 230. Section 230 is not one of the 10 commandments. It is not a constitutional provision. It's a federal statute and we are lawmakers. The idea that we cannot touch it otherwise internet freedom incinerates is preposterous.
▶ 0:35:29Chair Cruz: So, I'm looking forward to a good, constructive, bipartisan discussion about what reforms are possible. Thank you.
▶ 0:35:36Chair Cruz: Thank you. I would like to enthusiastically reiterate what ranking member schatz just said, section 230 is not one of the 10 commandments. For fans of the history of the world, not one of the 15 commandments either. I would like to introduce our witnesses for the day.
▶ 0:35:59Chair Cruz: The first witness is daphne keller, the director of platform regulation at stanford law school's program in law, science, and technology. She previously served as the associate general counsel at google and her writing has been lightly featured in law journals and popular newspapers. Our second witness is nadine farid johnson, policy director at the knight first amendment institute.
▶ 0:36:23Chair Cruz: She was formally an american foreign service officer and today teaches at columbia university school of international and public affairs. Our third witness is matthew bergman, founding attorney of the social media victims law center. As an attorney, Mr. bergman has worked extensively in product liability law and his firm has filed lawsuits against several major social media companies alleging addictive design flaws.
▶ 0:36:53Chair Cruz: Our final witness is brad carson, president and cofounder of americans for responsible innovation. Mr. carson served as the representative for oklahoma's second congressional district from 2001-2005, and is acting under secretary of defense for personnel and readiness under the obama administration. Ms. keller, you are recognized for your opening statement.
▶ 0:37:15Ms. Keller: Chairman cruz, ranking member schatz, members of the committee, thank you for the opportunity to speak today. I am a lawyer with over 25 years of experience in practice and as an academic in the field of platform regulation in the U.S.
▶ 0:37:33Ms. Keller: And around the world and I'm also a native seattleite, not a native hawaiian, married to a texan, and I believe the most fundamental issues before us today are nonpartisan. I heard a lot of sentiments from you that are similar that I find encouraging. We will talk about section, but it we will talk about section, but -- about section 230, but it may be the worst option except for all the other ones.
▶ 0:38:04Ms. Keller: I agree section 230 is not sacrosanct or even well-written, but it struck a balance that served its purpose and I do not see other options that I think would be an improvement so far. Any proposed legal change, no matter how well-intentioned should be vetted for two things. First, is it constitutional? Second, would it make things worse? I will speak to the constitution first.
▶ 0:38:30Ms. Keller: The internet is full of speech that most of us in this room would find offensive and likely consider harmful or dangerous, but a lot of that speech is also protected by the first amendment, including a great deal of hate speech and mis or disinformation. Lawmakers cannot tell platforms to remove or demote the speech and eliminating section 230 would not change that or give them an obligation to remove the speech.
▶ 0:38:56Ms. Keller: The constitution limits details about laws attempting to hold platforms liable for users genuinely illegal speech like fraud or defamation or obscenity. In a mid 20th century case, the supreme court rejected strict liability for booksellers because incentivizing them to purge their shelves would harm us, the reading public.
▶ 0:39:20Ms. Keller: It was not about the right to the booksellers, it was about the analogs of those of us today who depend on the internet to share our messages, post our book reviews, read restaurant reviews, engage in political dissent. This is about our rights. Let's talk about the second constraint. Would changes to the law make things worse?
▶ 0:39:41Ms. Keller: This is a question about what would actually happen, what platforms and users and importantly governments would predictably do in a world without section 230. That legal change would likely make the internet worse for users' speech rights without, I believe, actually making it any safer. It would impose legal uncertainty and expense that today's incumbent giants could survive but their smaller rivals could not.
▶ 0:40:08Ms. Keller: We have a lot of data to predict what happens when speech -- when platforms are held liable for the speech of their users. Platforms receive huge numbers of false allegations under laws like the dmca or the digital services act in europe for people demanding removal of perfectly legal speech. Governments do this, companies do this against their competitors, and platforms have strong incentives to simply comply.
▶ 0:40:38Ms. Keller: The idea that the first amendment alone would cause platforms to stand up for their users' lawful speech when doing so is expensive and inconvenient is simply wrong. We could make informed predictions about harms to users from bad content, things like pro-eating disorder content or pro-suicide content. Platforms take down an enormous quantities of this material now under their own voluntarily adopted rules.
▶ 0:41:07Ms. Keller: The point of section 230 was to encourage them to do so and make sure that they could look at the content and make editorial decisions without risking liability. In an alternate timeline without section 230, platforms that moderated content at all would have reason to purge anything remotely risky. The other option would be to leave everything up and tolerate all kinds of harmful or illegal material.
▶ 0:41:36Ms. Keller: Finally, losing section 230 would, I believe, be catastrophic for competition. I wrote in my testimony about a platform that was very similar to youtube that was sued on similar grounds. But they went bankrupt in the process and now we don't have a major competitor to youtube.
▶ 0:41:56Ms. Keller: In a 230-less world we should expect years and things the giants can withstand and their smaller rivals can't. None of this is to say that congress' hands are tied. There are ways to make the internet a better, safer place without setting new state-imposed rules for speech. Robust federal privacy protections would be a great start.
▶ 0:42:20Ms. Keller: My fellow witness has written about how middleware and interoperability can offer a more diverse and competitive internet in which speech preferences are controlled by users themselves. Section 230 can help make that a reality. Section 230 has proven value and congress should not abandon it for propose solutions that have every chance of making things worse. I thank you for your time and I look forward to your questions.
▶ 0:42:48Chair Cruz: Ms. farid johnson, you are recognized.
▶ 0:42:52Ms. Farid Johnson: Thank you, chairman cruz, ranking member schatz, distinguished members of the committee. The issue before this committee today is immensely important. All of us agree the digital public sphere is not working for americans or for our democracy. The question is what to do about it. Section 230's protection is vital to free speech online, even if there are difficult questions of how far the protection should extend.
▶ 0:43:22Ms. Farid Johnson: While section 230 shouldn't be treated as sacrosanct, refueling it would do little to address the problems we are most concerned about and in some ways would make those problems worse. The better approach would be to pass structural regulation that would protect users' privacy, allow them to engage in platforms on their own terms or leave them more easily.
▶ 0:43:44Ms. Farid Johnson: If congress is going to amend section 230, it should make its protection conditional on platform's compliance with transparency, privacy, and interoperability requirements. Section 230 effectively gave platforms the ability to moderate user content without having to fear that doing so would give rise to liability. With that protection platforms moderate content in many ways including suppressing spam, pornography, and a varying degree hateful speech.
▶ 0:44:13Ms. Farid Johnson: While there is disagreement about what speech platforms should moderate and how come it's indisputable that platforms would be not usable if they didn't engage in moderation in ways section 230 was made to protect. Some speech on platforms is seriously harmful, denigrating, dangerous, polarizing. The supreme court interpreted the first amendment to deny to the government the ability to punish speech that causes outrage.
▶ 0:44:43Ms. Farid Johnson: Platforms would be protected from publishing most of this speech even in the absence of 230 because the first amendment would most likely be understood to protect it. Without section 230, because the first amendment protects outrageous and sensational speech, platforms wouldn't be required to remove it but would be motivated to take down speech that could possibly give rise to liability come especially defamatory speech.
▶ 0:45:07Ms. Farid Johnson: Rather than risk liability for such content they would almost certainly remove it, including allegations that turned out to be true, depriving users to socially valuable information critical to our public discourse. There is an opportunity for congress to act by putting forward legislation aligned with first amendment rights and would foster a better online environment for people who use social media platforms. Simultaneously minimizing the harms of social media while liberating users from monopoly control over an suppression of their online speech.
▶ 0:45:37Ms. Farid Johnson: We have three proposals. First, lawmakers should establish legal protection for those who study platforms and public interest. Understanding the online experience of users, how algorithms target content and how the decisions shape public discourse and our democracy is a necessary step towards informing the public about how the platforms operate. Today, those who study the platforms are under the threat of serious legal liability.
▶ 0:46:03Ms. Farid Johnson: Having a research safe harbor would improve the understanding of how platforms are shaping society. One is the first night proposal -- knight first proposal. Second, legislators can address several data privacy related issues that affect users' experience online. Platforms are successful in maintaining user engagement because they use the extensive information that they gather about a user to recommend content.
▶ 0:46:32Ms. Farid Johnson: Legislators could require platforms to clearly inform users as to what data the platforms collect, how they use the data, with whom they share it, and could limit what information platforms collect. Congress can pass legislation that prevents platforms from selling information to data brokers. The privacy enhancing efforts would be a monumental step forward to protect all americans, but especially minors who engage online. Congress can and should attack the platforms' monopoly control over public discourse.
▶ 0:47:02Ms. Farid Johnson: The platforms have been successful at maintaining control over the social media industry. In practice, this denies users meaningful choice over the platforms they use and makes it nearly impossible for new platforms to compete with incumbents. The most direct way to address this problem would be to establish a requirement of interoperability enabling users to take their data and social networks with them when they leave a platform. We support these mandates as standalone goals.
▶ 0:47:28Ms. Farid Johnson: We believe section 230 can be done in a way that not only respects the limitations of the first amendment but pronounce the values that underlie it. Thank you for the opportunity to testify this morning and I look forward to your questions.
▶ 0:47:43Chair Cruz: Mr. bergman, you are recognized for your opening.
▶ 0:47:46Mr. Bergman: Thank you, chairman cruz, ranking member schatz, esteemed members of this committee, it's an honor to be here to address the current state of section 230. We appreciate the bipartisan leadership of this committee in addressing the carnage that is being inflicted on american young people through the deliberate design decisions of social media companies to target kids to enhance their profits over the safety of kids, and we commend this committee for its
▶ 0:48:19Mr. Bergman: Online safety act last session which passed with 91 votes. As justice thomas observed, courts interpreted section 230 to convert sweeping immunity on some of the largest companies in the world. In order to convey the human cost of this expansive definition, I have asked three families who have been directly affected by section 230 to come before this committee and for you to hear their stories.
▶ 0:48:47Mr. Bergman: To my left is rodriguez of enfield, connecticut, the mother of selena rodriguez, forever 11. In the words of her sister, destiny, selena could light up a room as soon as she walked in. You know when she walked in because with the light came a lot of noise. Selena was so addicted to social media that she became physically violent when there was any effort to take it away.
▶ 0:49:18Mr. Bergman: As depicted in the written testimony, she was targeted through the deliberate design decisions of these companies with online sexual abusers and predators. You can see the conversations they had that would make any parent blanch. She developed such despair and depression that she took her life on snapchat and recorded a song that was provided to her on snapchat. Forever 11. Tony and brandy roberts are from new liberia, louisiana.
▶ 0:49:52Mr. Bergman: They are the parents of england roberts, age 14 forever. She was the youngest of five, vivacious and sassy. In the words of her father she made every day seem like christmas. Tony thought that he was monitoring his daughter' is online content, he just didn't know how to do it. She was being pulled into a dark world.
▶ 0:50:15Mr. Bergman: You can see in the written materials, developed more suicidal ideation based on the deliberate design decisions. Additionally in the materials we have submitted to the committee you can see a chart showing on a daily basis how much she was being targeted after hours when her parents thought that she was safe and asleep. She took her life by mimicking an ad, a depiction of suicide online that was targeted to her.
▶ 0:50:48Mr. Bergman: As recently as this morning, that material is still on instagram. Jenny is the mother of mason, forever 16. In the words of his stepdad, mason was an all-american football player but there was another side, a gentle, loving energy. As a young high school boy he broke up with his girlfriend and sought affirming content on tiktok to amend his broken heart.
▶ 0:51:17Mr. Bergman: Instead, without asking for it, he was targeted with suicidal videos, encouraging him to take his life with a shotgun, which is what he did in his parent's home. I've included clips to those things that tiktok targeted him with, and I would ask every parent in this room to look at those videos and ask whether a company that targets children with this content should be accorded unfettered immunity from basic principles of liability and human decency.
▶ 0:51:49Mr. Bergman: Every parent in this room needs -- these cases have nothing to do with protecting speech. They are about the deliberate design decisions of companies to prioritize profits over the lives and safety of their children. Yet, in every one of these cases, social media has tried to dismiss these cases based on section 230. Section 230, as written, sought to maximize user control over what information is received by individuals.
▶ 0:52:18Mr. Bergman: The statute explicitly sought to empower parents and embolden law enforcement. Yet, the original intent has been thrown by the wayside by these interpretations. In the words of justice thomas, and the platform's world, they are fully responsible for their websites. When it results in constitutional protestations. The moment that could lead to liability, they disclaim any obligation and enjoy greater protections than nearly any other industry.
▶ 0:52:49Mr. Bergman: We ask this committee reform section 230 to conform to its original intent to require that companies follow -- tech companies follow the rules that every other company in america follows, and that the duty of reasonable care not be immune from only one segment of our economy. Thank you.
▶ 0:53:08Chair Cruz: Thank you, Mr. bergman. Thank you for telling our clients' story. I want to say to the moms and dads who are here, thank you for being here. Thank you for standing up and remembering and fighting for your kids. As the father of two teenage girls, you are living every parents' nightmare.
▶ 0:53:36Chair Cruz: I don't know a parent of adolescents or teenagers who is not terrified of the tragic forces that targeted your children. So, thank you. Mr. carson.
▶ 0:53:47Mr. Carson: Chairman cruz, senator schatz, members of the committee, thanks for inviting me to testify as we mark the 30th anniversary of section 230. I also want to give special thanks to chairman cruz for his determined and prescient work to pass the take it down law which ari supported and will make a difference in the effort to hold big tech platforms accountable.
▶ 0:54:17Mr. Carson: As we discussed the harm of children online in the wake of section 230, the take it down act as a commendable effort to correct the historical course. 30 years ago, congress passed section 230 to address a narrow problem. Whether online platforms could moderate content without assuming publisher liability. Today, the law is widely criticized for enabling unchecked harms online.
▶ 0:54:48Mr. Carson: As we confront artificial intelligence, we should ask ourselves a simple question. Will we repeat the mistakes of section 230 or will we learn from them. There are two competing interpretations of how section 230 went so wrong. One is section 230 was ill-conceived from the beginning.
▶ 0:55:13Mr. Carson: That ordinary first amendment case-by-case development through the common law would have produced a more nuanced and flexible body of law. Rather than allowing the development of rules through our legal system, section 230 froze answers in place. Questions the law had not yet fully considered, much less answered.
▶ 0:55:37Mr. Carson: Another view is that the statute was defensible but courts interpreted it far beyond what congress intended providing platforms with illegal immunity not only -- legal immunity not only for online content but to include algorithmic amplification and product design choices.
▶ 0:55:59Mr. Carson: Regardless of which is more accurate, both assessments recognize that the resulting legal regime has been unable to hold platforms accountable in proportion to the harms they have enabled. Families whose children exploded on nine were harmed by algorithmically amplified content have often discovered the law offers them little recourse. Section 230 may be 26 words that created the internet.
▶ 0:56:28Mr. Carson: They also are the 26 words that visited your revocable harm to generations of children. The history of section 230, because congress faces a structurally equivalent moment regarding artificial intelligence. Some have suggested freezing state law developments while enacting no comprehensive federal regulation of the technology.
▶ 0:56:55Mr. Carson: Section 230 is what I would call a metal ball that determines who governs an emerging industry rather than how the governance would occur. Enacted when the internet was still in its infancy, section 230's consequences have proven difficult to correct once the industry matured.
▶ 0:57:16Mr. Carson: In practice the first metal law on technology often becomes the last major law because it determines who has the power to resist future corrections. Section 230 should it be interpreted providing a generative ai system for harms caused by system outputs.
▶ 0:57:39Mr. Carson: Section 230 protects platforms from liability for content, as the statute says, provided by another information content provider. That framework assumes active users and passive posts. Generative ai systems don't fit that model. The user provides a prompt, the company designs the model, selects the training data, find tunes the system, and deploys it with parameters of its choosing.
▶ 0:58:09Mr. Carson: The resulting output is not third-party content, it's the product of the ai system the company created. Even though that answer seems obvious, congress should clarify the law for lower courts to extend -- before lower courts extend immunity beyond what the law permits. Congress should not establish broad essentially unchangeable immunity for an industry it doesn't yet understand and future development can scarcely be charted.
▶ 0:58:38Mr. Carson: The preemption of state laws related to artificial intelligence would be a repeat of section 230's tragic history, complete with all of the errors of the former without any of the latter's corrective measures. There are many forms of legal stagnation that section 230 has called. -- has caused. I would urge the committee to not repeat these mistakes as we embrace new technologies. I look forward to your questions.
▶ 0:59:05Chair Cruz: Thank you to each of the witnesses. Let's start for Ms. keller and Ms. farid johnson. With the benefit of 30 years of hindsight, what is the worst or most offensive use of section 230 as a liability shield you seen?
▶ 0:59:22Ms. Keller: I will give you two answers. One about racial discrimination. The second is about government censorship. The first is a case called vargas, the one decision out of a cluster of cases. That general allegation was that facebook was offering racially-based targeting, gender-based targeting for ads for housing and employment and credit, which is prohibited by federal law.
▶ 0:59:49Ms. Keller: What makes that not a 230 case in my mind is that the user uploaded something totally legal, just an apartment listing. Facebook added the thing that made it violate the law, which was the racial targeting. That is my exhibit a. Facebook allegedly -- we don't know exactly what happened.
▶ 1:00:16Ms. Keller: The second is a case called seeks for justice versus facebook. This was an american court plaintiffs alleging facebook had silenced them based on pressure from the indian government. Under section 230 the platform have the right to do that, but it's very sad. Section 230 exists to protect users.
▶ 1:00:49Ms. Keller: It is to give a spine to the spineless if they want one and having platforms back down when they could have done better is unfortunate. Thanks to section 230, hopefully another platform can come along and do better.
▶ 1:01:04Chair Cruz: Ms. farid johnson?
▶ 1:01:09Ms. Farid Johnson: I will use the example of the case that I think demonstrates some of the cynicism in seeking 230 protection when it is unwarranted and demonstrates the limitations of the provision. There is a case called women there is a case called wome -- lemon v snap, suing snapchat for the speed filter encouraging users to drive at excessive speeds.
▶ 1:01:39Ms. Farid Johnson: Snap responded to the complaint by seeking 230 immunity. The appellate court noted that a platform can still face liability for its provision of content neutral tools where the liability stems from the platform's own acts, such as designing, in this case, and making available to users the speed filter and corresponding reward system. It wasn't the content posted by the users, it was the actions of the platform itself.
▶ 1:02:07Chair Cruz: Let me ask a follow-up. The key motivation for congress passing section 230 was to incentivize a flourishing marketplace of ideas online. As I explained in my opening statement, I want to find ways to curb big tech censorship so we have ways to have more speech, not less of speech, on online platforms. Ms. keller, Ms. farid johnson, how can congress constitutionally modify section 230 to protect or incentivize more speech, not less?
▶ 1:02:42Ms. Keller: Again, I have two answers. The first is about jawboning and pressure from government. The second is about empowering users and diversifying our options. I will get to the first one and you tell me if you have time for second one. I didn't love the biden administration pressure that was illustrated in the case.
▶ 1:03:07Ms. Keller: That said, having been on the receiving end of pressure like that, the tone in that record looked like the tone that government officials from all parties sometimes take in high-handed demands that platforms conform to their content preferences.
▶ 1:03:25Ms. Keller: In that case the plaintiff's got unprecedented discovery and still could not establish any actual causation that led to their speech being suppressed, and this led to the supreme court issuing a problematic ruling on standing. For the real victims of real jawboning in the future, it will be harder to get into court because of that. We are in an era of jawboning that is unprecedented in my lifetime.
▶ 1:03:52Ms. Keller: Brendan carr is at it again, pressuring news outlets now. We are seeing highly politicized enforcement at the ftc of laws that are supposed to be neutral consumer protection and antitrust laws. All of this leads to unprecedented vulnerability of our speech and communication to this kind of pressure.
▶ 1:04:14Ms. Keller: As you pointed out, chairman, both of you pointed out, all of our speech is dependent on these big, private companies right now. We are seeing this play out on the screen in front of us with platforms.
▶ 1:04:29Ms. Keller: Maybe it is also taking place in back rooms, but on tv we can see in august of 2024 president trump threatened to jail mark zuckerberg in january of 2025 zuckerberg publicly announced changes to facebook's and instagram's speech policies to conform with the current administration's speech preferences. He did it in a kind of hostage video. It was very strange.
▶ 1:05:02Ms. Keller: Also settled a lawsuit that facebook was going to win and pay that out in a suit from president trump. When president trump was asked of these changes were a result of his threat to jail the ceo of a platform, he said, probably. This is crazy. This should not be possible in today's america. The first amendment should preclude it.
▶ 1:05:26Ms. Keller: Any work that you can do, or perhaps are doing, to make it more possible to get into court and get past the standing restrictions from murthy I would think would be extremely important. In the meantime section 230 can give smaller platforms more of a spine.
▶ 1:05:44Chair Cruz: You can answer briefly.
▶ 1:05:49Ms. Farid Johnson: Briefly, senator, the way we see the best way to amend section 230 is protections on the transparency, limited privacy, and interoperability.
▶ 1:06:03Sen. Schatz: Thank you, chairman. Thank you to the test of fires. I want to say, at the risk of getting the chairman and trouble in his home state, he is doing an extraordinary job of leading this on a bipartisan basis, and also specifically on the question of jawboning, I think that without his leadership there would have been fewer guardrails on the current jawboning. I take your point, Ms.
▶ 1:06:29Sen. Schatz: Keller, that the jawboning occurred in the previous administration as well. The fog of war, the urgency of protecting people from the covid-19 pandemic, does not entirely justify the way that federal government officials interacted with private sector companies.
▶ 1:06:53Sen. Schatz: I am just glad that we now have in three dimensions, in real time, examples of both parties doing this. It is no longer theoretical that the door swings both ways in washington. This will bite us all in the butt and we have to fix it and we know it. I'm pleased that senator cruz has set the platform for us to work on a nonpartisan basis not a bipartisan basis.
▶ 1:07:24Sen. Schatz: Mr. bergman, your lawsuit is interesting. I am particularly interested in the kind of expansive view of what the platforms view as 230 providing them shield and what I think is your theory on the case which is, the ai, the design choices are a product subject to regular product liability.
▶ 1:07:51Sen. Schatz: I would like you to articulate how that distinction is made and whether there is anything we can do, statutorily, to constrain the regular 230 immunity. Someone upload some content, they cannot be sued for libel. That's fine. We are now in an age where half of the stuff on these platforms is ai anyway. A lot of it is harming kids.
▶ 1:08:18Sen. Schatz: It seems to me that we need to clarify either through the court system or the legislature, or both, what we originally meant by 230. I'm interested in your thoughts.
▶ 1:08:30Mr. Bergman: Section 230 remains an important protection for online communication and the free exchange of ideas. It's important section 230 adhere to its original intent, which was to immunize publishing activity. The impetus for this came from my mentor on the ninth circuit in barnes versus yahoo!
▶ 1:08:54Mr. Bergman: Where he established a distinction from where an individual seeking to hold the company liable for traditional publishing activity, bad content moderation, bad stuff online, putting bad stuff online, that is and should remain subject to section 230. As the court held in barns, even if the same harm results from a different theory of liability, in the case of barnes, lemon vs.
▶ 1:09:24Mr. Bergman: Snap, negligent design, it's a separate duty and that should be allowed to proceed. Our cases are based on the premise that these platforms are products, designed based on the deliberate design decisions, they target children -- not with material they want to see, but material they cannot look away from.
▶ 1:09:44Mr. Bergman: They take advantage of that fact and exploit the underdeveloped frontal cortices of young individuals, the need for fomo - -the fear of missing out, social anxiety, and they use highly sophisticated ai to addict them to their platforms. The research is showing that it is physically addictive.
▶ 1:10:07Mr. Bergman: I think it's possible, and we've seen this -- we completed a trial and are awaiting a jury verdict as we speak, where we brought a case to the conclusion of trial where we were able to cleave that important distinction between content moderation, which is protected by section 230 even if the platforms are doing a good job of that, and the deliberate design of defective products.
▶ 1:10:32Sen. Schatz: I'm always a little cautious about writing a statute, a new statute, if I think the existing statute already provides the pathway, because I don't want to stipulate needing to change the law if you're a central point of view is, actually, the law just needs to be interpreted properly. I think you've got it right.
▶ 1:10:57Sen. Schatz: I would like your advice over time if there's anything we can do in terms of clarifying legislative intent were to include modifying existing statute. I don't want to stipulate to the idea that the original law provides such a broad immunity to the platform. What are your thoughts about the need for the legislature to take action, or should we wait for the court cases to that?
▶ 1:11:21Mr. Bergman: If we wait for court cases more kids will die so I think things have to happen. I think clarifying the original legislative intent to encourage the development of technologies was to maximize user control over what information is received by individuals, remove disincentives to the utilization of blocking and filtering technologies that empower parents to restrict their children's access and ensure vigorous reinforcement of federal laws to deter
▶ 1:11:54Mr. Bergman: Trafficking, obscenity, and harassment. If this committee were to reaffirm those objectives, along with the important objectives of preserving the free marketplace of ideas, I think we can go a long way.
▶ 1:12:04Sen. Schatz: I agree with almost everything you said, but senator cruz and I have a bill on a bipartisan basis, the kids off social media act. The basis idea, besides the obvious that there is no real use case for a nine-year-old to be on instagram, tiktok, snap, whatever it might be, is also the idea of empowering the user to turn the dials, the settings,
▶ 1:12:34Sen. Schatz: Is a fantasy. If you are a parent, that is a fantasy. You will not get access to your kids' phone all the time. The platforms will work around whatever statutory framework we have. That is why we need a there is no safe cigarette point of view when it comes to kids. Brains and bodies are not fully developed. Kids off social media act -- I don't have any objection to empowering users, but I do not think that will actually protect kids.
▶ 1:13:06Chair Cruz: I very much concur with what ranking member schatz said, the kids of social media act, this committee passed it in a bipartisan way and I hope we pass it on the floor of the senate and get it to the president's desk for signature. I will tell a brief story how helpless parents are in dealing with this several years ago. Our eldest daughter was in trouble and we grounded her and took away her phone for a month. As parents of teenagers, they will tell you that is truly a draconian punishment.
▶ 1:13:39Chair Cruz: Two weeks into it heidi gets a random email from verizon that didn't make any sense. We dug more deeply and it turned out before she had handed over her phone to us she had taken the sim card out of it and gotten a burner phone and put the sim card in the phone. We went to confront her.
▶ 1:14:00Chair Cruz: At age 14 she sat with her arms crossed in her room and said you said I couldn't have my phone, you didn't say I couldn't have my sim card. I was both annoyed and proud at the same time. It does show how completely outmatched parents are trying to keep up with teenagers with these issues. Senator fischer.
▶ 1:14:24Sen. Fischer: The challenge before congress is ensuring we have both accountability and the environment for free speech and online. Section 230 was designed to meet both of those goals. Ms.
▶ 1:14:42Sen. Fischer: Farid could mandate the transparency about con at any time improve free speech and and really, what's the line between protecting free expression and systematic harassment online?
▶ 1:15:04Ms. Farid Johnson: Thank you, senator. As I argued in various topics, transparency requirements, including disclosure and reporting requirements, are generally upheld under the standard, so long as they are not unduly burdensome with respect to speech.
▶ 1:15:23Ms. Farid Johnson: What that means in plain terms is that there can be laws that require the disclosure of factual and uncontroversial information from a platform about the terms on which the service is offered, for example, as what you were mentioning. And these can be considered constitutional if they are not unjustified.
▶ 1:15:43Ms. Farid Johnson: So essentially what it comes down to is if the, if congress can craft a provision that demonstrates there's not an undue burden on speech, but also provides a transparency that you're hoping for, that could meet, that could pass scrutiny. >> is the problem here we're looking at in the statute itself, or is it with how the courts interpret that?
▶ 1:16:12Ms. Farid Johnson: Merchandise keller, we'll start with you. Ms. keller, we'll start with you.
▶ 1:16:22Ms. Keller: I'm trying to think through how the courts interpret it. Right anyway the courts are all over the place. There are rulings -- >> do we need to drill down and be more specific in the statute, which is kind of contrary to what congress usually does?
▶ 1:16:39Ms. Keller: I actually think that the courts are in the process of working towards some answers. For example, on this question of design liability and figuring out what you would consider to be the platform's own doing and distinct from user speech, there are a bunch of child safety cases going on, including in multidistrict litigation, where courts are saying, well, maybe auto play of videos counts as design, and that's not something
▶ 1:17:11Ms. Keller: That platforms could be liable for. Maybe sending notifications counts as design. Maybe infinite scroll counts as design. And so they're moving toward answering these questions that I think actually would play out kind of similarly under the first amendment and 230. I'll stop.
▶ 1:17:33Ms. Keller: >> do you think we need to look at section 230 and should it be able to protect platforms when their algorithms are really actively amplifying some really harmful content? Or only when they host it. So are they -- do we have a distinction out there between hosting and creating?
▶ 1:18:01Ms. Keller: I think the first question is, are we talking about content that is in the lawful but awful category? As so much of the pro-anorexia, just terrible content is. If congress doesn't have the power to prohibit that, they also don't have the power to tell platforms to change their algorithms and to down rank it.
▶ 1:18:26Ms. Keller: The supreme court has been very clear in saying that a direct ban on speech and something that just burdens speech by making it harder to distribute get the exact same scrutiny from the court.
▶ 1:18:39Sen. Fischer: If we would carve out algorithms out of section 230, does that create a workable law, or is it just going to create a lot of litigation?
▶ 1:18:51Ms. Keller: This is the question that went to the supreme court in gonzalez and then didn't get resolved. So there are a stack of briefs of very smart people arguing every side of this issue. But what I think is that it would cause the most important real estate on platforms, the places that most users actually go to be dignified, you know, to be purged of anything of any risk.
▶ 1:19:15Ms. Keller: For example, at the time of that case at least, 70% of youtube views were from the recommended videos. It would mean that in that area, youtube has anen? Active to -- has an incentive to definitely not have any anti-I.c.e. Videos, not have any any accusations of wrongdoing by powerful people, not have new voices breaking in and have that be extremely safe.
▶ 1:19:40Ms. Keller: And I think that would be harmful for the many, many people, creators, advocates who rely on platforms to get their word out.
▶ 1:19:49Sen. Fischer: Thank you very much. Thank you, Mr. chairman.
▶ 1:19:52Chair Cruz: Thank you. Senator klobuchar?
▶ 1:19:54Sen. Klobuchar: Thank you very much, senator cruz, and thank you for holding this important hearing, and our work together on the take it down act couldn't be more important. I think I'll start with you, Mr. can you talk about how the blanket section 230 immunity has shut the courthouse door to so many parents seeking justice for their children?
▶ 1:20:15Mr. Bergman: Yes, we have a case involving a 12-year-old girl who, through snapchats, friendship recommendation algorithm was connected to an online sex predator, who was able to utilize the emoji process to groom this child into sex torting here, meeting her, and he raped her.
▶ 1:20:40Mr. Bergman: And we brought suit against snapchat, saying that the technology that allowed an unprotected -- that failed to provide protection to a 12-year-old girl and allowed a sex predator to operate at scale and disguise his intent was a designed decision. That case, unfortunately, was struck down, or was dismissed. The court said it's offensive to our conscience, but I have to do it.
▶ 1:21:08Sen. Klobuchar: How would repealing it or making changes to section 230 create incentives for platforms to be designed in a way that are safe for her users? I think of an exploding washing machine that wouldn't be protected from immunity. They make changes.
▶ 1:21:25Mr. Bergman: Senator, that's the exact point. We just want social media companies to follow the same incentives structure that every other company does. It's reasonable care.
▶ 1:21:36Sen. Klobuchar: Should we continue to think of these companies as merely neutral distributors, as they would like, as opposed to publishers picking and choosing what users view and when? Because the whole idea originally was this distribution.
▶ 1:21:54Mr. Carson: I think the idea of neutral platforms is normally pervasive to me, but runs pullly afoul of how supreme court approaches first amendment laws these days. To answer your question and what senator fischer said, a great reform of section 230 would be to remove the algorithmic optimization that the platforms do as being seen as another speech. So right now, it doesn't protect your own speech, only another's speech.
▶ 1:22:24Mr. Carson: So if you were to define, say, what facebook does as facebook speech, it would still have first amendment protections first amendment prote protectios first amendment prote protectiod you'd still have to litigate that. It would be their own speech and therefore not subject to 230 immunity. So there is a way to get after what is a very serious problem, the use of algorithm, which the supreme court has suggested does have some constitutional protection.
▶ 1:22:50Mr. Carson: But these ones are just not optimization that don't have any expressive value. I'm not promoting each of the causes.
▶ 1:22:58Sen. Clock: : could the take it down act, just as we look at beyond section 230, is there some model we could use? We have the bill to protect people's identities on the a.I. Front and the like. Is that some kind of model we could use?
▶ 1:23:14Mr. Carson: That was the right model. Section 512 is similar, they're both promising avenues.
▶ 1:23:21Sen. Klobuchar: Thank you. Professor farid johnson, we need these common-sense rules of the road, and senator grassley and I at the american innovation choice online act, which actually got through the committee with a very good vote, to pry open competition online as another way to look at this by stopping anti-competitive self-preferencing.
▶ 1:23:44Sen. Klobuchar: In your testimony, you argue that congress should attack the platform's monopoly control over public discourse. Can you talk about how increasing competition and choice online, especially through interoperability, can help address some of the problems that we are talking about today?
▶ 1:24:02Ms. Farid Johnson: Senator, thank you. What we're hoping to do here with this type of legislation is to give users more control over their experience. Right now, what happens is when someone logs on to a safe space, for example, they are given a speed, and that feed comes to them because of the information that facebook collects about them and basically making recommendations accordingly.
▶ 1:24:23Ms. Farid Johnson: If somebody wanted to log on to facebook and be able to talk with certain friends or their grandmother or whoever it might be, but doesn't want to teal with that, if we had a robust interoperability mandate, that person would be able to use third-party software to be able to design how they want to view that feed. That's one example of it.
▶ 1:24:44Sen. Klobuchar: Quickly, Ms. keller, you previously said that Ms. farid johnson just referred to software that can give users more control over what they see online, as one solution that could help with section 230. But almost no major platform allows it. How would opening up these platforms mitigate online harm?
▶ 1:25:09Ms. Farid Johnson: I'm glad you asked, because I wish that senator schatz were still here to respond to his very valid concern that parents don't want a bunch of choices, they justment their kids to be safe. Part of what middle ware would make possible, or interoperability, is competitors who figured out a better way to protect children to offer a one-click option for parents, bringing in interoperability is a way for innovators to find new and different ways to do these things.
▶ 1:25:37Ms. Farid Johnson: So I think it is extremely promising. Right now, people are scared to build interon the part ofable projects, because they can get sued and shut down. This happened to a company called power ventures 10 or 15 years ago. They offered a very basic service to aggregate your social media feeds from multiple platforms in one user interface.
▶ 1:26:01Ms. Farid Johnson: And facebook sued them under the computer fraud and abuse act, which is this anti-hacking law from the 1980's, and got them shut down. Similarly, section 1201 of the dmca, which is intended to prevent hacking through encryption on copyrighted d.v.d.'s, gets weaponize this had way. So I think there are a lot of opportunities to reform existing laws in ways that open the door to interoperability.
▶ 1:26:26Sen. Klobuchar: Great answers. Maybe I'll do a few more on the record, but thank you all for your thoughtful work, and I really hope we can press ahead with these changes.
▶ 1:26:36Chair Cruz: Thank you. Senator schmitt?
▶ 1:26:38Sen. Schmitt: Ms. keller, you would agree that the government shouldn't be censoring american speech, correct?
▶ 1:26:46Ms. Farid Johnson: Correct.
▶ 1:26:48Sen. Schmitt: They can't put that out? You're the director of the stanford cyberpolicy center, which oversees the stanford internet observatory, correct?
▶ 1:26:59Ms. Farid Johnson: No, I'm not the director.
▶ 1:27:01Sen. Schmitt: Do you have a role in the organization?
▶ 1:27:04Ms. Farid Johnson: I have a role, but my main placement is in the law science technology in the law school.
▶ 1:27:09Sen. Schmitt: Did you have anything to do with that observatory participating in the election integrity project of 2020?
▶ 1:27:18Ms. Farid Johnson: Not really. But I fully support their first amendment right to do so.
▶ 1:27:25Sen. Schmitt: Let's walk through that. Their role with the biden administration was to flag content that they thought was offensive, that may have, didn't line up with the biden administration's view of the origin of the covid virus or on the vaccine or on people's opinions on how the 2020 election went down.
▶ 1:27:49Sen. Schmitt: And so what their job was to do, which was to flag content the biden administration didn't like, feed it back to the biden administration, and then put pressure on social media companies to take that content down. Is that consistent with your view of the first amendment?
▶ 1:28:04Ms. Farid Johnson: No, excuse me, that version of the fact is not consistent with my understanding. I don't think they were doing the biden administration's bidding. They were doing -- they were exercising their first amendment rights to go talk to the government and say what they thought should happen.
▶ 1:28:20Sen. Schmitt: What is it that they thought should happen, that content should come down?
▶ 1:28:25Ms. Farid Johnson: Probably, in some cases, as is their first amendment right.
▶ 1:28:30Sen. Schmitt: Are you defending that, the government should take that down?
▶ 1:28:34Ms. Farid Johnson: There's no government in this scenario.
▶ 1:28:36Sen. Schmitt: Oh, there is, absolutely. The government outsourced the job of flagging offensive content that they didn't like. And in this credited, the government doesn't get to side what they see, hear or say. In your university, it was right in the middle of all of this. And what I hear you saying is that you actually think that's ok.
▶ 1:28:55Ms. Farid Johnson: Again, academics exercising their first amendment rights to say what they think and say it to government are absolutely
▶ 1:29:02Sen. Schmitt: That's not what was happening. The biden administration charged them with the duty of we can't do this ourselves. We want to start a disinformation governance board, but we can't do that. So we're outer sousing to stanford to flag the stuff that the government agency won't do now because we don't have one, tell us what is offensive by way of these guidelines, and then we will tell the tech companies that's a nice tech company that you got there, be a shame if something happened to it if you don't throttle these people or take down r.f.k. Jr.
▶ 1:29:32Sen. Schmitt: Or take down jay, who's now the head of n.I.h. So I find it a little rich that you're here lecturing us about and espousing of the virtues of the first amendment, and then on the other hand, defending your role in the censorship regime we lived through for four years.
▶ 1:29:51Ms. Farid Johnson: I can't there. I can't tell you how the conversations went. But I do know the people. I can't imagine them doing the government's bidding.
▶ 1:30:00Sen. Schmitt: Read all about it in the missouri versus biden.
▶ 1:30:05Ms. Farid Johnson: The won you lost? Sen. some submit why, we
▶ 1:30:09Didn'T -- Schmitt: We didn't lose the case. I actual have the no idea why you're here today. You've embarrassed yourself. Your university has embarrassed itself. It's part of this censorship regime is a cautionary tale for the future. It's a cautionary tale. Mr.
▶ 1:30:25Didn'T -- Schmitt: Bergman, I want to ask you, since section 230 was enacted, are there features that exist now that weren't contemplated maybe with section 230 that are worth taking a look at? I happen to believe having an open platform for people to share their points of views that are important in this country, but there have been obviously outcomes that are terrible that we're talking about today.
▶ 1:30:50Didn'T -- Schmitt: Are there certain things that protecting that open platform for people to have the pressure release valve to speak their mind, but especially as it relates to kids or other things that maybe weren't contemplated in the late 1990's that we could address.
▶ 1:31:06Mr. Bergman: Absolutely. Netscape was the biggest platform when the section 230 was enacted. But yes, senator, there are specific features, the infinite scroll, the light feature, the push notifications that are designed to addict kids. And again, not by showing them what they want to see, but what they don't want to look away from. If a 12-year-old girl really wants to access anorexia content, god forbid, that's a very sad situation.
▶ 1:31:37Mr. Bergman: But I don't think it gives rise to liability. On the other hand, if the platform's only order to maintain an addictive relationship to sell more ads, feed that child information she's not looking for, I think that's a distinction that can be drawn and can preserve the vibrancy of the internet as a free marketplace of ideas.
▶ 1:31:57Sen. Schmitt: The file to collude act, which would say basically that a social media company, you get into the con at any time moderation business and you violate someone's first amendmentment rights, you lose your section 230 protections. I think that would be a very important reformer us to consider. Thank you.
▶ 1:32:14Chair Cruz: Thank you. Senator baldwin?
▶ 1:32:16Sen. Baldwin: Thank you, Mr. chairman. Jawboning is informally defined as informal often coercive efforts by government officials to pressure private companies into moderating or removing content that they cannot legally censor directly.
▶ 1:32:42Sen. Baldwin: I was listening with interest of the previous senator's questioning, and certainly feel like there's examples we can draw upon from multiple administrations, including this one. President trump has attempted to rewrite history by forcing museums to remove content.
▶ 1:33:10Sen. Baldwin: Brendan carr, the head of the f.c.c., has threatened broadcasters' licenses, who air unflattering news about this administration and this president. If used properly, and validated by experts, the internet can be a place that people turn when information is being limited or attempted to be censored by the government. Think about now and recent events.
▶ 1:33:38Sen. Baldwin: It might be where somebody accesses information on abortion or lgbtq identity, or scientific research on climate change. Or your rights against discrimination in the work place. I want to talk about this, and I also want to talk about the downsides of section 230. But Ms.
▶ 1:34:01Sen. Baldwin: Keller, can you explain whether and how section 230 works to protect access to information that people rely on to make informed decisions?
▶ 1:34:12Ms. Keller: Section 230 is essential in protecting that access. You referenced information about reproductive healthcare and abortion. Under texas law and under a bill that I believe is still pending there, it would be very easy for someone to sue a platform because somebody, because a young woman researched this information. So I think you are completely right to connect those two issues.
▶ 1:34:43Sen. Baldwin: You highlight the harms that can come from the internet and technology, especially for children. I want to thank the parents who have brought their stories and their children's stories here with them today. And are actively taking on these social media companies. Your stories clearly highlight the immediate need to remove harmful content, especially content directed toward children from these sites.
▶ 1:35:11Sen. Baldwin: So I'd like to just, first of all, go down the line and ask all of the witnesses, does section 230 prohibit platforms from engaging in content moderation? Ms. killer?
▶ 1:35:23Ms. Keller: No.
▶ 1:35:25Ms. Farid Johnson: No.
▶ 1:35:25Mr. Bergman: It does not.
▶ 1:35:30Sen. Baldwin: Ms. farid johnson, in your testimony, you highlight that section 230 does not protect platforms from harmful decisions they make. When is a design decision expressive and when is it not?
▶ 1:35:48Ms. Farid Johnson: Senator, that question is being worked through in the courts right now. It's an incredibly challenging question. One of the reasons that we have been looking to structural changes and structural regulation is because like it was said earlier, the law doesn't always keep up with technology and as we try to figure out what is expressive and what is not and we're waiting for the courts to help us with that, it's almost like a gain of whack-a-mole, right?
▶ 1:36:19Ms. Farid Johnson: If we can actually look at some of the root causes of this, where we know these terrible things are happening and people are being drawn in because the platforms know so much about them, they know, they kind of know what we're going to do before we know we're going to do it, right?
▶ 1:36:34Ms. Farid Johnson: But if we have more research into what's happening, if it's protected, if we have specific data privacy protections, understanding how what's being requested and how it's being used, those issues are going to help us try to solve this problem as quickly as possible.
▶ 1:36:58Sen. Baldwin: It seems every platform uses different algorithm to push content and have different protections in place for children on their platforms. And have different policies on content moderation. I want to stick with you, Ms. farid johnson. How transparent are online platforms about their use of algorithms and granular moderation decisions?
▶ 1:37:23Sen. Baldwin: Would it be beneficial if congress required increased disclosure and explanation for these practices in their uses?
▶ 1:37:34Ms. Farid Johnson: So I think that there is a way to ensure additional transparency into the platform's practices. What we have said is that any kind of required transparency, any kind kind of disclosure, shut be seen to be an undue burden on speech. But those can be crafted certainly.
▶ 1:37:56Ms. Farid Johnson: I think in terms of whether we look at additional, having additional understanding of what the platforms are doing would also benefit from allowing independent researchers in the public interest to product that research online, so they have access. Right now they are really thwarted from doing so, because the terms of service of these platforms are onerous that they could be subject to civil and even criminal liability for their efforts.
▶ 1:38:23Sen. Baldwin: Thank you.
▶ 1:38:25Chair Cruz: Thank you. Senator curtis?
▶ 1:38:27Sen. Curtis: Thank you, and thank you, Mr. chairman, for this hearing. It means a lot to me, and it means a lot to these parents, so thank you. Mr. bergman, you started your firm I think in reaction to what you were seeing out there from some of these parents that are here today. Section 230 was intended to protect us, and it's clear that other things get in the way, so maybe it's profits, whatever it is from that.
▶ 1:38:55Sen. Curtis: And you've looked for ways to hold companies accountable, and we've talked about these product features several times. They enlisted them, and I'll come back to them in a minute. But I agree with that approach, and that's why I entered the algorithm accountability act to clearly define the platform that doesn't uphold a duty of care, should not be protected by section 230.
▶ 1:39:19Sen. Curtis: So the question is, does section 230 reform, does it come in conflict with the second amendment? Before you answer that, I want to put this in context with my second question. Section 230, as I understand, was originally designed to protect platforms from the liability of a third-party message or third-party search, if that makes sense.
▶ 1:39:48Sen. Curtis: The best analogy I've been able to think of is the post office. Imagine for a moment I mail a letter to you, and the post office delivers that letter, we would never dream of holding the post office accountable for the content of that letter. But I think we do acknowledge that there are certain things that the post office would be justified in withholding that letter. Child pornography or perhaps a bomb or something, we give them that license in certain cases.
▶ 1:40:16Sen. Curtis: And my experience after eight years here in washington is that we all stop right there and say how does the post office define whether or not they should deliver that letter? Let's suppose they could read every letter, and so we hear the chairman say, and I totally agree with him, that we would want the post office to not stop any more letters than they have to. We want as many letters to get through as possible.
▶ 1:40:43Sen. Curtis: And we're, what I would call a foolish cycle of what should and should not be delivered. Everybody has their own definition. You hear some, like the chairman, say almost everything should be delivered, and then I other colleagues argue and say why would you deliver that letter? I want to take us past that point to the mailbox.
▶ 1:41:10Sen. Curtis: When the letter gets to the mailbox, imagine in the post office had opened that letter and read it, and then designed features for the own owner of that letter that they sent not that letter to the person, but to 100 million people. That same letter we said, oh, we like the content of that, we're going to send it to 100 million people. We like the content. We think they'll useless the post office more if they read this letter and then they designed, and now we come into the features, push notifications, automatic scroll, all these things we have listed.
▶ 1:41:40Sen. Curtis: That the post office is doing to get the 100 million people to read that letter. And layer on top of that, the fact that we know they're far more likely to distribute the letter that is sensational, that does what we've talked about today. You've defined that, and we're trying to define that as product liability.
▶ 1:42:01Sen. Curtis: Now when we come back to can we approach this without damaging the second amendment, if we go to the end right to the mailbox, where it's being opened up, instead of this decision about are they censoring, and we're talking about the liability of their actions, and can you define the legal distinction between holding a platform liable for speech, just in the middle there, versus the platform liable for the way it distributes that speech?
▶ 1:42:29Mr. Bergman: Yes, senator, and just to follow up on your analogy, it's as though the letter had cocaine attached to it and they become addicted. In 1996, when section 230 was enacted, the first amendment was around for 205 years and had protected the rights of free expression.
▶ 1:42:48Mr. Bergman: The fact that section 230 imposed a blanket liability, if that were to be modified, we would still have a robust body of law to protect free expression and the free exchange of ideas. And there's two elements to that. Number one, the question is to what extent does a.I. Constitute speech? That's a esoteric question, and the answer is sometimes yes, sometimes no. So algorithmic recommendations may or may not have free speech component.
▶ 1:43:18Mr. Bergman: The second question, though, senator, and this is very important, is that even if something is speech, it doesn't mean it's necessarily protected. The vile material that selena rodriguez received was speech, but it was online grooming, and it's clearly not protected. Libel isn't protected.
▶ 1:43:40Mr. Bergman: Our courts have a very robust jurisprudence, and there's nothing more I think impressive than chief justice roberts' analysis in snider to analyze where action imposes speech and where it doesn't.
▶ 1:43:53Mr. Bergman: So I think that if section -- if cases were allowed to go back, if cases that would be barred by section 230 were allowed to proceed in the court system, the jurisprudence that we have on the first amendment I think would be draw that vital distinction between free speech and the statute.
▶ 1:44:17Sen. Curtis: You would love this, so let me pointed it out. Walk through me with me the advantage of the legal system deciding this versus a senator placed in a moment of time trying to say this is ok, but this isn't ok.
▶ 1:44:34Mr. Bergman: Well, the laws evolve over time, senator, and particularly defining what is or isn't protected speech is something that's conferred on the courts. I think that were section 230 t- I think that were section 230 td I think that were section 230 ti I think that were section 230 tt I think that were section 230 te repeal, but allow cases such as these families to go forward, courts would still have the opportunity to apply time-tested first amendment jurisprudence to determine the extent to which those claims implicate protected speech.
▶ 1:45:03Sen. Curtis: Versus us taking a point in time, and 30 years later deciding if we got it right. And I'm out of time, but let me conclude with this quote from section 230. Encourage the development of technologies to maximize user control. Over what information is received by individual families and schools. Are we meeting that standard of section 230?
▶ 1:45:24Mr. Bergman: Unfortunately not, senator.
▶ 1:45:27Sen. Curtis: I wish I had more time, thank you, Mr. chairman, I yield.
▶ 1:45:31Chair Cruz: Senator luge lujan?
▶ 1:45:37Sen. Lujan: One question is the extent to which companies should be held liable for illegal content generated by their products. As legal scholars point out under the section regime, while platforms enjoy immunity, plaintiffs can still sue the original creator. But a.I. Generated search results that may cause harm could injure parties, could leave injured parties without recourse. Mr. carson, what is your view on whether generative a.I. Search engines exist in section 230?
▶ 1:46:08Mr. Carson: I don't think generative a.I. Should be under section 230 at all.
▶ 1:46:13Sen. Lujan: Do you think they'll benefit from section 230 protection?
▶ 1:46:18Mr. Carson: If they're hosting someone else's a.I., like I make an image and post it on facebook, then it's clearly covered by section 230 today. But the a.I. System itself, if they were to use it or who chatgpt creates for me personally, that's not covered by 20. That's not covered by it.
▶ 1:46:38Sen. Lujan: So elon musk using grok to put your face on a naked body is ok?
▶ 1:46:44Mr. Carson: No, definitely not ok in any way. He probably has some 230 immunity for that. I wouldn't give him that. I would make him subject, as mrn I would make him subject, as mro I would make him subject, as mre I would make him subject, as mrn law. But he would certainly claim 230 for his own posting, since he owns grok today and x. That would be an interesting legal question.
▶ 1:47:05Sen. Lujan: I hope it gets tested. I authored a brief where I argued that social media companies have a first amendment right to crate and moderate con at any time on their platforms. Discussions regarding section 230 often focus on the law's liability of protections, but your testimony, you write that "the choice to moderate is precisely what section 230 encourages," and that the law has produced a variety of platform that have adopted diverse approaches to content
▶ 1:47:36Sen. Lujan: Moderation. You also filed an amicus brief where you argue that texas and florida laws at issue burden the speech of the platforms. Can you explain to us the role section 230 mails in the first amendment rights of platforms toen gauge in content moderation?
▶ 1:47:54Ms. Farid Johnson: Certainly. Platforms have rights to engage in content moderation, as the majority in the moody case decided under the first amendment. Section 230 basically gives an additional layer of procedural protection around that so that if they are sued over these things, they can get the cases dismissed quickly, which if you are a start jump is incredibly important. These cases can get extremely expensive. I feel like I'm missing the other part of your question. It was about gonzalez?
▶ 1:48:26Sen. Lujan: I was getting more to the area that you included, the burden from the texas and florida lieu, which was in the same case.
▶ 1:48:36Ms. Keller: I see. To be clear, the thrust of that brief was really about the rights of users being affected, about the state government
▶ 1:48:45Coming A: Sailing, hey, if you want to use the internet and hear the podcast you have to hear, you have to navigate the garbage. We were concerned about the rights of users, and we propose that had a less restrictive means than the state setting the rules would be middleware, and something that allows users themselves to take control.
▶ 1:49:08Sen. Lujan: Ms. farid johnson, similar question to you. Do platforms have a first amendment rights to engage in content moderation?
▶ 1:49:17Ms. Farid Johnson: Yes.
▶ 1:49:18Sen. Lujan: In your testimony, you state that section 230 does not always provide liability protection. For example, certain platforms may be held liable for harms that arise from content neutral tools. Unfortunately, as Mr. bergman points out in his testimony, social media companies will argue that every algorithmic design can be exempt from liability, while there's certainly gray areas, it's hard to believe a design feature sole until place to get and keep kids addicted to social media is immune from all liability.
▶ 1:49:50Sen. Lujan: My question is when does a design feature cross over from being an editorial decision immune from liability to a content neutral tool outside of section 230 protections?
▶ 1:50:02Ms. Farid Johnson: Thank you, senator. That's a question that's making its way through the courts right now. We are seeing a number of cases that are asking the question about when a design is expressive, such as it would be protected under the first amendment. We just don't have the answers yet I will say that in terms of algorithmic, the decisions that amplify are going to be quite difficult to distinguish. For example, if a newspaper were to put a particular headline or amplify a particular piece of news because they are trying to get someone to read that news.
▶ 1:50:34Ms. Farid Johnson: So I think that it's important to look at the fact that there are going to be these decisions there that are going to seem editorial, and from our perspective, the way to address this is not necessarily to wait out the courts in terms of trying to anything part out, because you can't legislate around the first amendment.
▶ 1:50:54Ms. Farid Johnson: But rather, to say we know what some of the structural issues are with respect to people having the -- people's engagement online. And if we know that they are being targeted because of the information collected about them from these platforms, then the way to go about it is to address the data privacy issue rather than trying to circumvent the first amendment.
▶ 1:51:19Sen. Lujan: Should social media companies provide the public with transparency regarding data collection?
▶ 1:51:28Ms. Farid Johnson: Yeah, die believe that transparency provisions, if appropriately drafted, can certainly be constitutional, yes.
▶ 1:51:36Sen. Lujan: Mr. chairman, I'll submit this question to the record. Mr. bergman, I was going to ask about your litigation experience, how are social media companies weaponizing design decisions to keep kids submitted. I'll submit that into the record and look forward to hearing your answer.
▶ 1:51:53Mr. Bergman: Thank you.
▶ 1:51:55Chair Cruz: Senator capito?
▶ 1:51:58Sen. Capito: -- you could have never imagined that we would see three young people at such young age take their own life through what we thought was a magnificent discovery in the 1990's.
▶ 1:52:20Sen. Capito: And so I want to thank them for what they're doing, because what you're doing is helping other parents, as we see these kinds of things. You're so brave to do this. We just had an instance of this, I live in west virginia, an instance you might have read about, a 15-year-old boy took his own life very quickly in a sextortion case, and his parents have come forward. So I know it can't be easy, and it leads me to my other thought.
▶ 1:52:47Sen. Capito: We're sitting here, we've got kids online safety, we had a hearing on the addictive nature of social media, we had four information sessions on what a.I. And what does that mean and how good is it and how bad is it. We haven't done anything.
▶ 1:53:07Sen. Capito: I think mart of our problem is, if we legislate today in this area, we're not going to pick up what I learned the day before yesterday, the new thing that's coming, which is super intelligent a.I., smarter than anybody in this room and all of us put together. We're still going to have the gaps, I think, that are still going to be able to catch our young people and others into the entrapment to do damaging things to themselves.
▶ 1:53:37Sen. Capito: So I feel frustrated by it that we can't figure out a better way to protect. And I understand the pushes and pulls of the first amendment, but when I look at the families, I think, you know, we got to do better here. We can't just keep having hearings, and I know the chairman has lots of good legislation out here, but we really need your help as a professional panel to help us weave those challenges.
▶ 1:54:04Sen. Capito: So if you look at the company, this just struck me. I thought if you look at the companies, why would they pursue this line of algorithm? Well, you know, advertising, money, and I started thinking about chick-fil-a. You know what? Chick-fil-a has a belief system they don't want to be open on sunday, and that's to their own economic detriment, although they can put all the other six days, so it can be done. You can self-select.
▶ 1:54:34Sen. Capito: You can self-regulate and up successful in a competitive environment. My question is, am I right to be concerned of whatever we could do -- I'm just going to go down the panel -- whatever we could do today, we're going to come back in 10 years and be obsolete? I'll start with the first, Ms. keller.
▶ 1:54:54Ms. Keller: The risk of obsolescence is indeed high. However, for a.I., there's the back drop of common law and tort law. Anything that is unprotected by section 230 as some people have said, the output of generative a.I. Would be, has this more flexible set of tools.
▶ 1:55:12Sen. Capito: Aren't these companies using this to generate algorithms?
▶ 1:55:17Ms. Keller: I think they're using a mix of a.I. And other editorial inputs the court tolds were immunized in the moody case.
▶ 1:55:28Ms. Farid Johnson: I agree it's high, which is why I think that looking at kind of the foundational question is critically important. If we have even from now, if we were to establish an a.I. Regulatory framework that was promoting independent research into the a.I.
▶ 1:55:44Ms. Farid Johnson: Developers, if we understood what's happening on the platform, if we limited the data they were collecting, those are the things that could help move the noodle in a way that could not run up against what happens next in terms of the next big tech thing.
▶ 1:56:01Sen. Capito: Mr. bergman?
▶ 1:56:06Mr. Bergman: The law changes, the laws of the stage coach adapt to the age of the automobile. The common law of the states does provide the ability to adapt and apply traditional concepts of responsibility, of negligence, to ever expanding technology.
▶ 1:56:23Mr. Bergman: So the first and foremost thing that I believe congress can do is allow the legal system to operate and basically use its economic function that the judge said to internalize the cost of safety and impose on social media companies, the same rules that every other company has. I think that would be a good start.
▶ 1:56:45Sen. Capito: Thank you.
▶ 1:56:48Mr. Carson: I think section 230 was a mistake, and mostly it's not because we don't need laws. It's because as justice thomas so well said, it's a get out of jail free card. And those are the kind of things you can't put in place before you actually understand how a industry is going to develop. You need flexible laws. You shouldn't freeze it in place at a time when the internet was hardly developed.
▶ 1:57:11Sen. Capito: Thank you.
▶ 1:57:14Chair Cruz: Thank you. Senator rosen?
▶ 1:57:17Sen. Rosen: Thank you, chairman cruz. Thank you to the witnesses for being here. I just want to build on a point that senator capito made. I just don't believe we can allow self-regulation and common law to be our guide, just because technology moves quickly. It doesn't mean that we here in congress shouldn't legislate or regulate where necessary and adjust where needed. We can't cede our power because things move quickly.
▶ 1:57:45Sen. Rosen: The world has always moved quickly, to your point about the stage coach to the car to autonomous vehicles maybe soon. So I gist want to make that comment for the record. But I want to talk about risks of section 230 protection for a.I., because last summer I led a bipartisan task force, I led a task force for combating antisemitism to xai, calling for accountability after their chatbot grok went on multiple antisemitic tirades on x and
▶ 1:58:15Sen. Rosen: Spread conspiracy theories about the holocaust. To he hit rate what senator lujan asked, should chatbots like grok, when integrated into a social media platform, be protected by section 230, and what are the risks if a.I. Chatbots, which are sometimes seen as less bias and had more accurate, are integrated on platforms and are protected under section 230?
▶ 1:58:44Mr. Carson: I don't believe generative a.I. Should be considered as speech and therefore should not be protected by section 230. In the case of grok and the example you gave, those companies should be liable under product liability theory and designed defect theory for making products that are engaging in this behavior.
▶ 1:59:07Sen. Rosen: They've concerned it's not the same as free expression by an individual. Companies are liable for harm when they release unsafe products, like an unsafe car seat, energy drink that causes heart attacks, and they can be held accountable for lying about their products. So Mr.
▶ 1:59:26Sen. Rosen: Bestman, I'm going ask you this time -- bergman, I'm going ask you, do you think failing to enforce its own content moderation policies makes products unsafe, and the part forms marketing themselves as one thick by explaining their policies online, but failing to create the online requirement that reflects their policies?
▶ 1:59:47Mr. Bergman: I think that's very much the case. We just completed a trial in los angeles, and because we could get past section 230, we were able to illicit and present documentary evidence that these companies intentionally have addicted children, knowing that children are being hurt because of it.
▶ 2:00:07Mr. Bergman: This evidence directly contradicted the testimony of the executives before this very committee, and we think that's a very important development, and the reason why section 230 should not conclude these cases from going forward and let the truth be heard.
▶ 2:00:26Sen. Rosen: We'll move on to impact on other platforms, because somewhat sideswiped with wikipedia, reddit, they rely on decentralized content moderation. It's partially why their communities are so vibrant and why people use their web sites. So there is a concern that eliminating section 230 could jeopardize their entire model. So Ms. johnson, down to you.
▶ 2:00:47Sen. Rosen: How can congress hold the largest social media companies accountable while protecting novel content moderation approaches and smaller web sites that operate differently from the big players?
▶ 2:01:02Ms. Farid Johnson: When we say platforms, we often mean social media, but it really applies to quite a broad swath, which is why when the institute has considered this question, we have come up with three proposals looking at researcher access, data privacy, and interoperability as possible means of conditioning protection for the very largest platforms, and therefore allowing others to continue to thrive.
▶ 2:01:27Sen. Rosen: Thank you. I'm going to move back to you, Mr. bergman, and ask enthuse. Some larger platforms, distinguished, again, many of which have designed their products to maximize engagement over all other metrics. Keep the eye balls on. They have fired content moderation staff and are no longer taking down content that violates, again, their own policies, and they still claim section 230 is necessary. Should there be a different standard for our larger platforms?
▶ 2:01:59Mr. Bergman: I think everyone should have a duty of reasonable care. I think section 230 does provide important protections and some should stay, but it should not be interpreted outside of what congress intended when it enacted the statute in 20, I'm sorry, in 1996.
▶ 2:02:17Sen. Rosen: Thank you. I yield.
▶ 2:02:19Chair Cruz: Thank you. Senator hickenlooper?
▶ 2:02:21Sen. Hickenlooper: Thank you, Mr. chair. Thank you to each of you for being here today and for all your work on this. This is obviously an issue of great complexity, but of religion unimaginable importance, if you really look at how deeply this damage goes. This issue around broad immunity and 230, you guys were debating. I'm not sure government is smart enough or can move fast enough to regulate a.I.
▶ 2:02:49Sen. Hickenlooper: At the speed it's going. And I don't see another way to deal with the situation without allowing or compelling the industry to regulate itself, which is really what 230 gets in the way of.
▶ 2:03:06Sen. Hickenlooper: In other words, if tort law can take actions against damages done to groups of people, history shows us that that's the way you create standards, and you create the evolution of standards to meet the needs of that moment. In terms of my time with you now, ivan given my own little speech, I want to talk a little bit about supply chain designations, and this is a little bit obscure, but no less important.
▶ 2:03:36Sen. Hickenlooper: Really for the first time ever, the united states has designated an american company as a supply chain threat and blacklist it had from working with the U.S. government. This is the same level that's been given to china's waugh hey, russian cybersecurity firms like kasperski.
▶ 2:03:58Sen. Hickenlooper: It's ironic to see that our administration, the fears, censorship under section 230, claims they want a smaller government, is now trying to weaponize the federal government law to force a company to dismiss their own policies and prevent a.I. From being used. For conducting mass surveillance against americans, for lethal targeting that is done autonomously. Ms.
▶ 2:04:27Sen. Hickenlooper: Keller, I'd like to go down the list, what message does it send to a supply chain risk designation? What's the message that is given to an american company, what's the message it sends to the rest of the innovation, let's put it that way.
▶ 2:04:51Ms. Keller: It sends a message the government is willing to bully and retaliate and make improper uses of laws to punish those who dissent or disagree or attempt to hold reasonable limits.
▶ 2:05:02Sen. Hook Hook: Thank you.
▶ 2:05:04Ms. Farid Johnson: I think to the extent that this type of action has taken in retaliation for speech sends an incredibly challenging message, very chilling. Sen. se
▶ 2:05:19Mr. Bergman: It's really not in my ambient to reply on that.
▶ 2:05:26Mr. Carson: It's an indefensible decision in an attempt to murder one of the leading instruments of national power that our country has, which is incredible a.I. Lab.
▶ 2:05:38Sen. Hickenlooper: Certainly e certainly something that is a sense, a place of power that we're giving away, in a way. Let me switch there. Ms. johnson, thank you for being here and your advocacy of the first amendment rights. Your ability to defend it. Some have argued the way they respond is a form of editorial discretion.
▶ 2:06:07Sen. Hickenlooper: In this case, that is certainly protected by the first amendment. But if we imagine a scenario where section 230 liability should protections for a.I. Were removed, when we think about that, congress, as we debate about how to establish a.I. Accountability, an accountability framework, how could this be done without violating the first amendment, protections on speech?
▶ 2:06:40Ms. Farid Johnson: It's an incredibly challenging question, and it's something that's working its way through the courts right now. I think I'll respond in two ways. One is that if you're looking at section 230 protection specifically, section 230 has platforms and liability for a publication of third-party content. To the extent that a.I. Output is out of a.I. Companies, it does not fall under that provision.
▶ 2:07:05Ms. Farid Johnson: In terms of crafting a durable piece of legislation that would help a.I. Accountability, I think what's important to start with are transparency provisions f. We had provisions that promoted and protected independent research into these a.I.
▶ 2:07:23Ms. Farid Johnson: Developers to really understand how they operate, to understand what is going on behind the scenes, that would provide americans with information that they can use in the public interest, that would ultimately lead to accountability.
▶ 2:07:37Sen. Hook Hook: Thank you. I yield back the floor.
▶ 2:07:39Chair Cruz: Thank you. Senator markey?
▶ 2:07:42Sen. Markey: Thank you for having this hearing. Again, I justment to recognize the parents who have lost their children. It's almost unimaginable a loss which you have suffered. Thank you for being here. Thank you for bearing with us. This mental health crisis in our country is very important.
▶ 2:08:17Sen. Markey: And it's my honor to stand with you. Other families from the same thing you have gone through, because those harms underscore the importance of the issues before us today, and I'm glad that we're having this hearing, because it's obviously very controversial and just raises so many important issues of online safety and privacy, free speech, as the different views are being laid out here today we can see
▶ 2:08:54Sen. Markey: This is a subject we should be talking about. Mr. bergman, I know your firm has done a lot of thinking about this issue and how to protect people online while working within section 230 and the lawsuits you're bringing. Can you explain further to the committee how your firm is bringing cases against the platforms and avoiding dismissal on section 230 ground?
▶ 2:09:22Mr. Bergman: Avoiding the dismissal sometimes. Avoiding dismissal sometimes, not other times. But we follow the theory enunciated by the ninth circuit in barnes v. Yahoo! That we focus on the design, and that is not -- it's not the content. It doesn't matter what the algorithm, they don't care what they show the kids.
▶ 2:09:52Mr. Bergman: It can be moon beams and rainbows, as long as the kid becomes addicted to this platform through conditioning. So we focus on the addictive design. We focus on the internet scrolls. We focus on the likes and the speak fee tires.
▶ 2:10:06Mr. Bergman: We focus on the fact that these companies, as we've learned in this litigation, deliberately target kids, knowingly that their brains are not fully developed and that they're very susceptible as adolescents to peer pressure.
▶ 2:10:25Sen. Markey: The conduit itself?
▶ 2:10:28Mr. Bergman: That's correct. The platform itself is dangerous.
▶ 2:10:31Sen. Markey: I appreciate your approach to this work to protect kids online. Ultimately we are going to have to deal with this issue.
▶ 2:10:48Sen. Markey: This committee, the chairman and ranking member, were very instrumental with senator cassidy and any passing the child online privacy protection act through the senate floor just two weeks ago unanimously.
▶ 2:11:10Sen. Markey: Could you talk a little bit about how important -- do you agree it's important for to us pass the act in order to guarantee -- they can't get kids with ads. Parents can demanded everything would be erased, rails the age to 17. Do you agree that should become a law in our country? Ms. keller?
▶ 2:11:32Ms. Keller: Can adults have that too, please?
▶ 2:11:36Sen. Markey: I'm with you, and I actually pass that had on the house floor in 1995, taken to conference committee. But I did pass it as well.
▶ 2:11:45Ms. Keller: Thank you.
▶ 2:11:46Sen. Markey: Across all platforms, 30 years ago. Ms. johnson?
▶ 2:11:53Ms. Farid Johnson: Yes, robust protection for children online in terms of privacy protection is critical.
▶ 2:11:59Mr. Bergman: Absolutely, senator. And the bipartisan leadership of this committee has been instrumental. This committee really has been the fulcrum of bringing these issues to the fore over the last five years under the bipartisan leadership, and on behalf of the families, you have already saved a lot of lives.
▶ 2:12:18Sen. Markey: Thank you.
▶ 2:12:20Mr. Carson: It would certainly be a great improvement. Sen. markey,: right now I'm working on a.I. Chatbots legislation. Does anyone want to talk about that and the importance for that? Mr. bergman?
▶ 2:12:33Mr. Bergman: Our firm brought the first case involving a.I. Chatbots, involving a 14-year-old boy who was goaded into suicide through an online chatbot. We successfully overcame a first amendment challenge and were able to move forward. We are bringing the first cases against openai for the same thing. And again, this is basically a design flaw. We know that a.I. Is here to stay, and it does a lot of good.
▶ 2:13:00Mr. Bergman: But companies need to take proactive measures to think about safety.
▶ 2:13:06Sen. Markey: These kids become emotionally dependent on chatbots. We need to move in that area as well, passing legislation. Mr. carson, would you like to add on to this?
▶ 2:13:16Mr. Carson: I think it's a critical issue. I think it comes to congress making clear, and this addresses senator hook hook's issue as well, chatgpt, claude, gemini are not protected speech under the first amendment at all. They're not worthy of the protections of the first amendment as expressions of human creativity or human autonomy. Yes, the rules around chatbots are very important for children especially, but for the broader society.
▶ 2:13:43Sen. Markey: As technology moves, we have to move as well. Technology is inanimate. It's only as good or bad as the human values we instill into those inanimate objects. And we have to continue the conversations. This new area is absolutely something that we should be discussing in this committee as well. Thank you, Mr. chairman. Type thank you. Senator blackburn?
▶ 2:14:11Sen. Blackburn: Thank you, Mr. chairman, and thank you to each of you for being here today. It has been a wonderful discussion, and we appreciate your insight, and to the parents, I want to say thank you for once again being here and for the advocacy that you bring.
▶ 2:14:31Sen. Blackburn: I appreciate that senator markey talked about cosa and kids online safety, and senator cruz has been such an advocate for protecting children in the virtual space, and indeed, I wish that our friends in the house were as committed to getting some of this legislation across the finish line as we are here in the senate.
▶ 2:15:02Sen. Blackburn: Mr. bergman, I want to come to you. I've listened to the hearing today, thinking back to where we were in the mid 1990's and the advent of section 230, which seemed like a really great idea for something that was going to be unknown, if you will, with a virtual space and giving companies a chance to get their sea legs under them. But what we have seen is abuse of section 230.
▶ 2:15:36Sen. Blackburn: And the way the social media platforms and big tech, as they have grown, they have become more given making excuses for their actions and blaming it on section 230 that it allows them to do this, that and the other.
▶ 2:15:57Sen. Blackburn: As I thought through this, one of the reasons I have grown to be in support of removing 230 is because big tech has proven they are incapable of regulating or policing themselves. They will not do it.
▶ 2:16:20Sen. Blackburn: They're like an errant child who keeps pushing and pushing and pushing and trying to move away any kind of responsibility, any displain, and they fight it every single day. And we have seen it as we have worked with parents.
▶ 2:16:40Sen. Blackburn: We have seen it as we talk to pediatricians and principals who talk about behavioral issues in school. It's what happens online and the online platforms do nothing.
▶ 2:16:58Sen. Blackburn: So talk for me a little bit about big tech's refusal to take an action to protect and the need that that puts on congress to take action to force them to protect.
▶ 2:17:20Mr. Bergman: Thank you from the bottom of my heart for your steadfast efforts on this issue, the kindness and compassion and commitment is an inspiration to all of us, and thank you for that. We just finished a trial in which we saw, and we've now been able, because we got over section 230 at least a little bit, to be able to see the internal documents from these companies.
▶ 2:17:42Mr. Bergman: And we see that indeed they are people of conscience within these companies sounding at left arm bells, and time and time again, their calls go unheeded because any time a design change would impair profitability engagement, they say no. How many times have the executives been incorps yaited before your committee, and they don't change their change? How many times have they had bad press?
▶ 2:18:09Mr. Bergman: The only thing that's going to change their behavior is when they have to pair the economic costs of their design designs, as richard or milton would say, you have to internalize the cost of saving. If they have to bear the cost of their dangerous platforms inseed of these families, instead of clergymen and policemen and doctors and psychologists and insurance companies, then they will have the incentive to change their behavior.
▶ 2:18:36Mr. Bergman: But right now, there's no would I, if they actually had to bear cost through a civil lawsuit, their behavior would change. And I think unless and through the imposition of civil liability, we can change their economic calculus, and we're not talking about imposing a special duty.
▶ 2:18:59Mr. Bergman: We're just talking about imposing the same rules that every other company has, every other company in america operates under duty of reasonable care. We're asking the same thing of social media.
▶ 2:19:13Sen. Blackburn: It's important to note every industrial sector in the united states has safety standards. They have the duty of care. The only one that does not is the virtual space. There are no safety standards. That's why cosa is a safety by design. It is a product safety bill to protect children in the virtual space.
▶ 2:19:43Sen. Blackburn: And it's unseemly to me that we have this growing industrial sector, and they have zero safety standards, and honestly, they don't give a ripping flip. When you've got somebody like mark zuckerberg, who says each kid is worth $270 to him, that is one of the most offensive statements I think I have ever heard come out of the mouth of a U.S.
▶ 2:20:12Sen. Blackburn: Corporate c.e.o., to put a value on the head of every child that is using their product. It is just unseemly. We are hard at work, and I have just released the trump america a.I. Act framework.
▶ 2:20:33Sen. Blackburn: The president asked me to take a shot at drafting this as just a guideline, as to where we start on the discussion about a framework for a.I. My hope is we're going to move forward on this more quickly than we did other components of the virtual space. And I'd like for you to respond for just a minute about why you think it is important, Mr. bergman, to have an a.I.
▶ 2:21:02Sen. Blackburn: Framework as we begin to move forward with more a.I. Concepts moving into commercialization.
▶ 2:21:10Mr. Bergman: Because we continue to see families that have buried children. Because a.I. Chatbotsen courage suicide. One would have thought after 2 1/2 years I could never be shocked, but when I saw what tool sets was provided,en couraged to kill himself, when I saw one other children was given a how-to manual, we have to do something, senator.
▶ 2:21:37Mr. Bergman: And your readership is such an inspiration, and I'm just so grateful on behalf of all the people I represent, but also as a father and grandfather, thank you.
▶ 2:21:46Sen. Blackburn: We appreciate you all. I want to thank each of you for being here today and for the spirited debate that you have brought to the issue. I will remind you that members of the committee have until march 25 to submit their questions. You all will have until april 8 to respond in writing to those questions that will be coming to you. And with that, it concludes our hearing. Committee is juniored.