EFF legal intern Jack Beck contributed to this post.

A California trial court recently departed from wide-ranging precedent and held that Snap, Inc., the maker of Snapchat, the popular social media app, had created a “defective” product by including features like disappearing messages, the ability to connect with people through mutual friends, and even the well-known “Stories” feature. We filed an amicus brief in the appeal, Neville v. Snap, Inc., at the California Court of Appeal, and are calling for the reversal of the earlier decision, which jeopardizes protections for online intermediaries and thus the free speech of all internet users.

At issue in the case is Section 230, without which the free and open internet as we know it would not exist. Section 230 provides that online intermediaries are generally not responsible for harmful user-generated content. Rather, responsibility for what a speaker says online falls on the person who spoke.

The plaintiffs are a group of parents whose children overdosed on fentanyl-laced drugs obtained through communications enabled by Snapchat. Even though the harm they suffered was premised on user-generated content—messages between the drug dealers and their children—the plaintiffs argued that Snapchat is a “defective product.” They highlighted various features available to all users on Snapchat, including disappearing messages, arguing that the features facilitate illegal drug deals.

Snap sought to have the case dismissed, arguing that the plaintiffs’ claims were barred by Section 230. The trial court disagreed, narrowly interpreting Section 230 and erroneously holding that the plaintiffs were merely trying to hold the company responsible for its own “independent tortious conduct—independent, that is, of the drug sellers’ posted content.” In so doing, the trial court departed from congressional intent and wide-ranging California and federal court precedent.

In a petition for a writ of mandate, Snap urged the appellate court to correct the lower court’s distortion of Section 230. The petition rightfully contends that the plaintiffs are trying to sidestep Section 230 through creative pleading. The petition argues that Section 230 protects online intermediaries from liability not only for hosting third-party content, but also for crucial editorial decisions like what features and tools to offer content creators and how to display their content.

We made two arguments in our brief supporting Snap’s appeal.

First, we explained that the features the plaintiffs targeted—and which the trial court gave no detailed analysis of—are regular parts of Snapchat’s functionality with numerous legitimate uses. Take Snapchat’s option to have messages disappear after a certain period of time. There are times when the option to make messages disappear can be crucial for protecting someone’s safety—for example, dissidents and journalists operating in repressive regimes, or domestic violence victims reaching out for support. It’s also an important privacy feature for everyday use. Simply put: the ability for users to exert control over who can see their messages and for how long, advances internet users’ privacy and security under legitimate circumstances.

Second, we highlighted in our brief that this case is about more than concerned families challenging a big tech company. Our modern communications are mediated by private companies, and so any weakening of Section 230 immunity for internet platforms would stifle everyone’s ability to communicate. Should the trial court’s ruling stand, Snapchat and similar platforms will be incentivized to remove features from their online services, resulting in bland and sanitized—and potentially more privacy invasive and less secure—communications platforms. User experience will be degraded as internet platforms are discouraged from creating new features and tools that facilitate speech. Companies seeking to minimize their legal exposure for harmful user-generated content will also drastically increase censorship of their users, and smaller platforms trying to get off the ground will fail to get funding or will be forced to shut down.

There’s no question that what happened in this case was tragic, and people are right to be upset about some elements of how big tech companies operate. But Section 230 is the wrong target. We strongly advocate for Section 230, yet when a tech company does something legitimately irresponsible, the statute still allows for them to be liable—as Snap knows from a lawsuit that put an end to its speed filter.

If the trial court’s decision is upheld, internet platforms would not have a reliable way to limit liability for the services they provide and the content they host. They would face too many lawsuits that cost too much money to defend. They would be unable to operate in their current capacity, and ultimately the internet would cease to exist in its current form. Billions of internet users would lose.

Imagine a world in which the internet is first and foremost about empowering people, not big corporations and government. In that world, government does “after-action” analyses to make sure its tech regulations are working as intended, recruits experienced technologists as advisors, and enforces real accountability for intelligence and law enforcement programs.

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(You can also find this episode on the Internet Archive and on YouTube.)

Ron Wyden has spent decades working toward that world, first as a congressman and now as Oregon’s senior U.S. Senator. Long among Congress’ most tech-savvy lawmakers, he helped write the law that shaped and protects the internet as we know it, and he has fought tirelessly against warrantless surveillance of Americans’ telecommunications data. Wyden speaks with EFF’s Cindy Cohn and Jason Kelley about his “I squared” —individuals and innovation—legislative approach to foster an internet that benefits everyone. 

In this episode you’ll learn about: 

• How a lot of the worrisome online content that critics blame on Section 230 is actually protected by the First Amendment 
• Requiring intelligence and law enforcement agencies to get warrants before obtaining Americans’ private telecommunications data 
• Why “foreign” is the most important word in “Foreign Intelligence Surveillance Act” 
• Making government officials understand national security isn’t heightened by reducing privacy 
• Protecting women from having their personal data weaponized against them 

U.S. Sen. Ron Wyden, D-OR, has served in the Senate since 1996; he was elected to his current six-year term in 2022. He chairs the Senate Finance Committee, and serves on the Energy and Natural Resources Committee, the Budget Committee, and the Select Committee on Intelligence; he also is the lead Senate Democrat on the Joint Committee on Taxation. His relentless defiance of the national security community's abuse of secrecy forced the declassification of the CIA Inspector General's 9/11 report, shut down the controversial Total Information Awareness program, and put a spotlight on both the Bush and Obama administrations’ reliance on "secret law." In 2006 he introduced the first Senate bill on net neutrality, and in 2011 he was the lone Senator to stand against the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), ultimately unsuccessful bills that purportedly were aimed at fighting online piracy but that actually would have caused significant harm to the internet. Earlier, he served from 1981 to 1996 in the House of Representatives, where he co-authored Section 230 of the Communications Decency Act of 1996—the law that protects Americans’ freedom of expression online by protecting the intermediaries we all rely on.

Resources: 

• EFF: Sen. Wyden Exposes Data Brokers Selling Location Data to Anti-Abortion Groups That Target Abortion Seekers (Feb. 27, 2024) 
• Just Security: “The Facts About Electronic Surveillance Reform  by U.S. Sen. Ron Wyden  (Jan. 31, 2024) 
• U.S. Sen. Ron Wyden: Wyden Remarks at Section 230 Briefing Hosted by EFF (March 8, 2023) 
• U.S. Supreme Court: Amicus brief of U.S. Sen. Ron Wyden and former Congressman Chris Cox in Gonzalez v. Google regarding Section 230 (January 19, 2023) 
• U.S. Sen Ron Wyden: Wyden Introduces SAFE SEX Workers Study Act (Dec. 17, 2019) 
• EFF's How to Fix the Internet podcast: Safer Sex Work Makes a Safer Internet (April 18, 2023)
• YouTube: DNI Clapper tells Wyden the NSA does not collect data on millions of Americans (March 12, 2013) 
• Washington Post: Interview: Sen. Ron Wyden’s fight to stop SOPA and save the Internet (Jan. 17, 2012)
• Tech Policy Press: Reversal of US Trade Policy Threatens the Free and Open Internet (Nov. 14, 2023) 

 What do you think of “How to Fix the Internet?” Share your feedback here. 

Transcript

SENATOR RON WYDEN
It's been all about two things, individuals and innovation. I call it “I squared,” so to speak, because those my principles. If you kind of follow what I'm trying to do, it's about individuals, it's about innovation. And you know, government has a role in playing to guardrails and ensuring that there are competitive markets. But what I really want to do is empower individuals.

CINDY COHN
That's U.S. Senator Ron Wyden of Oregon. He is a political internet pioneer. Since he was first elected to the Senate in 1996, he has fought for personal digital rights, and against corporate and company censorship, and for sensible limits on government secrecy.

[THEME MUSIC BEGINS]

CINDY COHN
I'm Cindy Cohn, the executive director of the Electronic Frontier Foundation.

JASON KELLEY
And I'm Jason Kelley - EFF's Activism Director. This is our podcast series, How to Fix the Internet.

CINDY COHN
The idea behind this show is that we're trying to make our digital lives better. And sometimes when we think about the lawmakers in our country, we often think of the conflict and fighting and people who just don’t get it when it comes to how digital works. But there are also some people in the legislatures who have worked to enact real progress.

JASON KELLEY
Our guest this week is one of the giants in the political fight for internet freedom for several decades now. Senator Wyden played a critical role in the passage of Section 230 — a pillar of online freedom of speech that has recently been coming under attack from many different sides. And he introduced the first Senate net neutrality bill back in 2006. He’s consistently pushed back against mass surveillance and pushed for a strong Fourth Amendment, and over the years, he has consistently fought for many of the things that we are fighting for here at EFF as well.

CINDY COHN
Our conversation takes a look back at some of the major milestones of his career, decisions that have directly impacted all of our online lives. And we talk about the challenges of getting Section 230 passed into law in the first place. But more recently, Senator Wyden also talks about why he was strongly opposed to laws like FOSTA-SESTA, which undermined the space that Section 230 creates for some online speakers, using the cover of trying to stop sex trafficking on the internet.

JASON KELLEY
But like us at EFF, Senator Wyden is focusing on the battles happening right now in Congress that could have a fundamental impact on our online lives. When he was elected in the ‘90s, the focus was on the explosion and rapid expansion of the internet. Now he’s thinking about the rapid expansion of artificial intelligence, and how we can make sure that we put the individual before the profits of corporations when it comes to AI.

CINDY COHN
Our conversation covers a lot of ground but we wanted to start with Senator Wyden’s own view of what a good tech future would look like for all of us.

SENATOR RON WYDEN
Well, it's one that empowers the individual. You know, consistently, the battles around here are between big interest groups. And what I want to do is see the individual have more power and big corporations and big government have less as it relates to communications.

CINDY COHN
Yeah. So what would that look like for an ordinary user? What kinds of things might be different?

SENATOR RON WYDEN
What we'd have, for example, is faster adoption of new products and services for people showing greater trust in emergency technologies. We'd build on the motivations that have been behind my privacy bills, the Fourth Amendment Is Not For Sale, for example, Section 230, the Algorithm Accountability Act. Cindy, in each one of these, it's been all about two things: individuals and innovation.

JASON KELLEY
I'm wondering if you're surprised by the way that things have turned out in any specific instance, you know, you had a lot of responsibility for some really important legislation for CDA 230, scaling back some NSA spying issues, helping to stop SOPA-PIPA, which are all, you know, really important to EFF and to a lot of our listeners and supporters. But I'm wondering if, you know, despite that, you've seen surprises in where we are that you didn't expect.

SENATOR RON WYDEN
I didn't expect to have so many opponents across the political spectrum for Section 230. I knew we would have some, but nothing has been the subject of more misinformation than 230. You had Donald Trump, the President of the United States, lying about Section 230 over and over again. I don't think Donald Trump would know what Section 230 was if it hit him in the head, but he was always lying about vote by mail and all those kinds of things.
And huge corporate interests like Big Cable and legacy media have bankrolled massive lobbying and PR campaigns against 230. Since they saw user-created content and the ability of regular people to be heard as a threat to their top-down model, all those big guys have been trying to invent reasons to oppose 230 that I could not have dreamed of.
So I'm not saying, I don't think Chris Cox would say it either, that the law is perfect. But when I think about it, it's really a tool for individuals, people without power, without clout, without lobbies, without big checkbooks. And, uh, you know, a lot of people come up to me and say, "Oh, if you're not in public life, 230 will finally disappear" and all this kind of thing. And I said, I think you're underestimating the power of people to really see what this was all about, which was something very new, a very great opportunity, but still based on a fundamental principle that the individual would be responsible for what they posted in this whole new medium and in the United States individual responsibility carries a lot of weight.

CINDY COHN
Oh, I so agree, and I think that one of the things that we've seen, um, with 230 but with a lot of other things now, is a kind of a correct identification of the harm and a wrong identification of what's causing it or what will solve it. So, you know, there are plenty of problems online, but, um, I think we feel, and I think it sounds like you do as well, that we're playing this funny little whack-a-mole game where whatever the problem is, somebody's sliding in to say that 230 is the reason they have that problem, when a lot of times it has to do with something, you know, not related. It could even be, in many cases, the U. S. Constitution, but also kind of misindentifying –

SENATOR RON WYDEN
Cindy, there's a great story that I sometimes tell. The New York Times one day had a big picture of Chris Cox and I, it was practically a full-length page. I'm 6'4", went to college on a basketball scholarship dreaming of playing in the NBA, and they said “these two people are responsible for all the hate information online and 230 empowered people to do it.” And we hardly ever do this, but Keith Chu, our wonderful expert on all things technology, finally touched base with him and said, "you know that if there was no 230, over 95 percent of what we see online that we really dislike — you know, misogyny, hate speech, racism — would still be out there because of the First Amendment, not 230."
And the New York Times, to its credit, printed a long, long apology essentially the next day, making the case that that was really all about the First Amendment, not 230. 230 brought added kind of features to this, particularly the capacity to moderate, which was so important in a new opportunity to communicate.

[MUSIC FADES IN]

CINDY COHN
What drives you towards building a better internet? So many people in Congress in your town don't really take the time to figure out what's going on, much less propose real solutions. They kind of, you know, we've been in this swing where they, they treated the technologies like heroes and now we're in a time when they're treating them like villains. But what drives you to, to kind of figure out what's actually going on and propose real solutions?

SENATOR RON WYDEN
I showed up, Cindy, Oregon's first new United States senator in 34 years, in 1996, the winner, and the only person who knew how to use a computer at that point was, uh, Pat Leahy, who was a great advocate of technology and, and innovation. I said, "I'm going to get into new stuff." In other words, Oregon had always been about wood products. We always will be about wood products and I will continue to champion those kinds of practices, particularly now we're working to prevent these huge fires. I also said we're going to get into new things. And my dad was a journalist and he said, "You're not doing your job if you don't ask hard questions every single day."
So what we tried to do, particularly in those first days, is kind of lay the foundation, just do the foundational principles for the internet. I mean, there's a book, Jeff Kossoff wrote “26 Words That Created the Internet,” but we also had internet tax policy to promote non-discrimination, so you wouldn't be treated different online than you would be offline.
Our digital signatures law, I think, has been a fabulous, you know, addition. People used to spend hours and hours in offices, you know, kind of signing these documents that look like five phone books stacked on top of each other, and they'd be getting through it in 15, 20 minutes. So, um, to me, what I think we showed is that you could produce more genuine innovation by thinking through what was to come than just lining the pocketbooks of these big entrenched interests. Now, a big part of what we're going to have to do now with AI is go through some of those same kinds of issues. You know, I think for example, we're all in on beating China. That's important. We're all in on innovation, but we've got to make sure that we cement bedrock, you know, privacy and accountability.
And that's really what's behind the Algorithm Accountability Act because, you know, what we wanted to do when people were getting ripped off in terms of housing and education and the like with AI, we wanted to get them basic protection.

JASON KELLEY
It sounds like you're, you know, you're already thinking about this new thing, AI, and in 20 or more years ago, you were thinking about the new thing, which is posting online. How do we get more of your colleagues to sort of have that same impulse to be interested in tackling those hard questions that you mentioned? I think we always wonder what's missing from their views, and we just don't really know how to make them sort of wake up to the things that you get.

SENATOR RON WYDEN
What we do is particularly focus on getting experienced and knowledgeable and effective staff. I tell people I went to school on a basketball scholarship. I remember recruiting, we kind of recruit our technologists like they were all LeBron James, and kind of talking about, you know, why there were going to be opportunities here. And we have just a terrific staff now, really led by Chris Segoyan and Keith Chu.
And it's paid huge dividends, for example, when we look at some of these shady data broker issues, government surveillance. Now, with the passing of my, my friend Dianne Feinstein,  one of the most senior members in the intelligence field and, uh,  these incredibly good staff allow me to get into these issues right now I'm with Senator Moran, Jerry Moran of Kansas trying to upend the declassification system because it basically doesn't declassify anything and I'm not sure they could catch bad guys, and they certainly are hanging on to stuff that is irresponsible, uh, information collection about innocent people.

[SHORT MUSIC INTERLUDE]

CINDY COHN
These are all problems that, of course, we're very deep in and,  we do appreciate that you, you know, our friend, Chris Segoyan,  who EFF's known for a long time and other people you've brought in really good technologists and people who understand technology to advise you. How do we get more senators to do that too? Are there things that we could help build that would make that easier?

SENATOR RON WYDEN
I think there are, and I think we need to do more, not post-mortems, but sort of more after-action kind of analysis. For example, the vote on SESTA-FOSTA was 98 to 2. And everybody wasn't sure where the other vote was, and Rand Paul came up to me and said, "You're right, so I'm voting with you."
And, uh, the point really was, you know, everybody hated the scourge of sex trafficking and the like. I consider those people monsters. But I pointed out that all you're going to do is drive them from a place where there was transparency to the dark web, where you can't get a search engine. And people go, "Huh? Well, Ron's telling us, you know, that it's going to get worse." And then I offered an amendment to basically do what I think would have really made a difference there, which is get more prosecutors and more investigators going after bad guys. And the ultimate factor that would be good, as I say, to have these sort of after-action, after-legislating kind of things, is everybody said, "Well, you know, you've got to have SESTA-FOSTA, or you're never going to be able to do anything about Backpage. This was this horrible place that, you know, there were real problems with respect to sex trafficking. And what happened was, Backpage was put out of business under existing law, not under SESTA-FOSTA, and when you guys have this discussion with, you know, people who are following the program and ask them, ask them when their senator or congressperson last had a press conference about SESTA-FOSTA.
I know the answer to this. I can't find a single press conference about SESTA-FOSTA, which was ballyhooed at the time as this miraculous cure for dealing with really bad guys, and the technology didn't make sense and the education didn't make sense, and the history with Backpage didn't make any sense and it's because people got all intoxicated with these, you know, ideas that somehow they were going to be doing this wondrous, you know, thing and it really made things worse.

CINDY COHN
So I'm hearing three things in the better world. One, and the one you've just mentioned, is that we actually have real accountability, that when we pass some kind of regulation, we take the time to look back and see whether it worked; that we have informed people who are helping advise or actually are the lawmakers and the regulators who understand how things, uh, really work.
And the third one is that we have a lot more accountability inside government around classification and secrecy, especially around things involving, you know, national security. And, you know, you're in this position, right, where you are read in as a member of the Intelligence Committee. So you kind of see what the rest of us don't. And I'm wondering, obviously I don't want you to reveal anything, but you know, are there, is that gap an important one that we close?

SENATOR RON WYDEN
Yeah, I mean, you know, there have been a lot of 14-to-1 votes in the Intelligence Committee over the, over the years, and, you know, I've been the one, and you know, the reality is people often get swept up in these kinds of arguments, particularly from people in government, like, we're having a big debate about surveillance now, Section 702, and, you know, everybody's saying, "Ron, what are you talking about? You're opposing this, you know, we face all these, all these kinds of, kinds of threats," and, um, you know, what I've always said is, read the title of the bill, Foreign Intelligence Surveillance Act, that means we're worried about foreign intelligence, we're not, under that law supposed to be sweeping up the records of vast numbers of Americans who are interconnected to those foreign individuals by virtue of the fact that communication systems have changed.
And I personally believe that smart policies ensure that you can fight terror ferociously while still protecting civil liberties, and not-so-smart policies give you less of both.

JASON KELLEY
How do we get to that balance that you're talking about, where, you know, I know a lot of people feel like we do have to have some level of surveillance to protect national security, but that balance of protecting the individual rights of people is a complicated one. And I'm wondering how you think about what that looks like for people.

SENATOR RON WYDEN
Well, for example, Zoe Lofgren, you know, Zoe has been a partner of mine on many projects. I know she's been sympathetic with all of you all, well, for many years in her service as a member from California. You know, what we said on our 702 reforms, and by the way, we had a whole bunch of Republicans, there needs to be a warrant requirement. If you're going after the personal data of Americans, there should be a warrant requirement.

Now, we were then asked, "Well, what happens if it's some kind of imminent kind of crisis?" And I said, what I've always said is that all my bills, as it relates to surveillance, have a warrant exception, which is if the government believes that there is an imminent threat to the security of our country and our people, the government can go up immediately and come back and settle the warrant matter afterwards. And at one point I was having a pretty vigorous debate with the President and his people, then-President Obama. And I said, "Mr. President, if the warrant requirement exception isn't written right, you all write it and I'm sure we'll work it out."
But I think that giving the government a wide berth to make an assessment about whether there is a real threat to the country and they're prepared to not only go up immediately to get the information, but to trust the process later on to come back and show that it was warranted. I think it's a fair balance. That's the kind of thing I'm working on right now.

JASON KELLEY
Let’s pause for just a moment to say thank you to our sponsor. “How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and Technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians.
And now back to our conversation with Senator Ron Wyden and his work on privacy laws.

SENATOR RON WYDEN
Really, the first big law that I got passed involved privacy rights of Americans outside the country. So we had won a bunch of battles before that, you know, defeating John Poindexter, Total Information Awareness, and a variety of other battles.
But when I started this, trying to protect the privacy rights of Americans who are outside the United States, you would have thought that Western civilization was going to end. And this was the Bush administration. And the DNI, the head of national intelligence, talked to me. He said, "Ron, this is just going to be disastrous. It's going to be horrible."
And I walked him through who we were talking about. And I said, the biggest group of people we're talking about are men and women who wear the uniform in the United States because they are outside the United States. You can't possibly be telling me, Director McConnell, it was Director McConnell at that time, that they shouldn't have privacy rights. And then things kind of moved and I kept working with them and they still said that this was going to be a tremendous threat and all the rest. They were going to veto it. They actually put out a statement about there would be a veto message. So I worked with them a little bit more and we worked it out. And when we were done, the Bush administration put out something, and we are proud to say that we are protecting the privacy rights of Americans outside the United States.
So, if you can just take enough time and be persistent enough, you can get things done. And now, we actually have elected officials and presidents of both political parties all taking credit for the privacy rights of people outside the United States.

[MUSIC STING COMES IN TO INTRO CLIP]

SENATOR RON WYDEN ON CSPAN
A yes or no answer to the question, does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

JAMES CLAPPER ON CSPAN
No sir.

SENATOR RON WYDEN ON CSPAN
It does not.

JAMES CLAPPER ON CSPAN
Not wittingly. There are cases where they could inadvertantly, perhaps, collect but not, not wittingly.

CINDY COHN
That's a clip from CSPAN, a pretty famous interaction you had with James Clapper in 2013. But I think the thing that really shines through with you is your ability to walk this fine line — you're very respectful of the system, even in an instance like this where someone is lying under oath right in your face, you know you have to work within the system to make change. How do you navigate that in the face of lies and misdirection?

SENATOR RON WYDEN
Well, you have to take the time to really tee it up, and I really credit John Dickus of Oregon, our staffer at the time, did a phenomenal job. He spent about six months teeing that question up for Mr. Clapper and what happened is his deputy — Mr. Clapper's deputy, Keith Alexander — had been telling what my 11-year-old daughter — my wife and I are older parents — we have this 11-year-old. She said, "Dad, that was a big whopper. That guy told a big whopper." Keith Alexander told a bunch of whoppers. And then Mr. Clapper did. And this had all been done in public. And so we asked for answers. He wouldn't give any answers. Then he came to the one, um, you know, open-threat hearing that we have each year. And we prepare for those open threat hearings like there is no tomorrow, because you don't get very many opportunities to have a chance to ask, you know, the important questions. And so John Dickus sent to Mr. Clapper, he sent him the question a day in advance, so that nobody could say that they hadn't gotten it, and it's an informal rule in the Intelligence Committee that if an official feels that they can't answer, they just say, "I can't answer, I have to do it in private." I wouldn't have liked that answer. But I would have respected it and tried to figure out some other way, but James Clapper got the question, looked at the camera, looked at me, and just lied and persisted in coming up — he had like five or six excuses for how he wasn't lying. And I think as the country found out what was going on, it was a big part of our product to produce the next round of laws that provided some scrutiny over the Patriot Act.

CINDY COHN
I think that's a really important kind of insight, right? Which is the thing that led to people being upset about the kind of massive surveillance and understanding it was kind of the lie, right? Like if there was more transparency on the part of the national security people and they didn't just tell themselves that they have to lie to all the rest of us, you know, in order to keep us safe, which I think is a very, very dangerous story in a democracy, we might end up in a much more reasonable place for everyone about privacy and security. And I actually don't think it's a balance. I think that you only get security if you have privacy, rather than they have to be traded off against them, and –

SENATOR RON WYDEN
You're a Ben Franklin person, Cindy. Anybody who gives up liberty to have security doesn't deserve either.

CINDY COHN
Well, I think that that's kind of right, but I also think that, you know, the history has shown that the intense secrecy, overbroad secrecy actually doesn't make us safer. And I think this goes back to your point about accountability, where we really do need to look back and say these things that have been embraced as allegedly making us safer, are they actually making us safer or are we better off having a different role for secrecy — not that there's no role, but then the one that has been, you know, kind of, it's an all-purpose excuse that no matter what the government does, it just uses the secrecy argument to make sure that the American people can't find out so that we don't, you know, evaluate whether things are working or not.
I just don't think that the, you know, my experience watching these things, and I don't know about yours, is that the overblown secrecy isn't actually making us safer.

[SHORT MUSIC INTERLUDE]

JASON KELLEY
Before we wrap up, we wanted to get a sense from you of what issues you see coming in the next three years or so that we're going to need to be thinking about to be ahead of the game. What's at the top of your mind looking forward?

SENATOR RON WYDEN
The impact of the Dobbs decision repealing Roe v. Wade is going to have huge ripple effects through our society. I believe, you know, women are already having their personal information weaponized. against them. And you're seeing it in states with, you know, MAGA attorneys general, but you're also seeing it – we did a big investigation of pharmacies. And pharmacies are giving out women's personal information hither and, and yon. And, you know, we're very much committed to getting privacy rights here. And I also want to congratulate EFF on your Who's Got Your Back report, because you really are touching on these same kinds of issues, and I think getting a warrant ought to be really important.
And the other one I mentioned is, uh, fighting government censorship. And I would put that both at home and abroad. It's no secret that China, Russia, and India want to control what people can say and read, but you know, if you look at some of what, you know, we're seeing in this country, the U.S. trade representative taking a big step backwards in terms of access to information, we're going to have to deal with that in here in our country too.

CINDY COHN
Oh, those are wonderful and scary, but wonderful and important things. I really appreciate you taking the time to talk to us. It's always such a pleasure and we are huge fans of the work that you've done, and thank you so much for carrying, you know, the “I squared,” individuals and innovation. Those are two values close to our hearts here at EFF and we really appreciate having you in Congress championing that as well

SENATOR RON WYDEN
I don't want to make this a bouquet-tossing contest, but we've had a lot of opportunities to work, work together and, you know, EFF is part of the Steppin' Up Caucus and, uh, really appreciate it and, uh, let's put this in "to be continued," okay?

CINDY COHN
Terrific.

SENATOR RON WYDEN
Thanks, guys.

CINDY COHN
I really could talk with Senator Wyden all day and specifically talk with him about national security all day, but what a great conversation. And it's so refreshing to have somebody who's experienced in Congress who really is focusing on two of the most important things that EFF focuses on as well. I love the framing of I squared, right? Individuals and innovation as the kind of centerpiece of a better world.

JASON KELLEY
Yeah. And you know, he's not just saying it, it's clear from his bills and his work over the years that he really does center those things. Innovation and individuals are really the core of things like Section 230 and many other pieces of legislation that he's worked on, which, it's just really nice and refreshing to hear someone who has a really strong ethos in the Senate and has the background to show that he means it.

CINDY COHN
Yeah, and you know, sometimes we disagree with Senator Wyden, but it's always refreshing to feel like, well, we're all trying to point in the same direction. We sometimes have disagreements about how to get there.

JASON KELLEY
Yeah. And one of the great things about working with him is that, you know, he and his staff are tech-savvy, so our disagreements are often pretty nuanced, at least from what I can remember. You know, we aren't having disagreements about what a technology is or something like that very often. I think we're, we're usually having really good conversations with his folks, because he's one of the most tech-savvy staffers in the Senate, and he's helped really make the Senate more tech-savvy overall.

CINDY COHN
Yeah, I think that this is one of these pieces of a better internet that, that feels kind of indirect, but is actually really important, which is making sure that our lawmakers - you know, they don't all have to be technologists. We have a couple technologists in Congress now, but they really have to be informed by people who understand how technology works.
And I think one of the things that's important when we show up a lot of the times is really, you know, having a clear ability to explain to the people, you know, whether it's the congressional people themselves or their staff, like how things really work and having that kind of expertise in house is, I think, something that's going to be really important if we're going to get to a better internet.

JASON KELLEY
Yeah. And it's clear that we have still work to do. You know, he brought up SESTA-FOSTA and that's an instance where, you know, he understands and his staff understands that that was a bad bill, but it was still, as he said, you know, 98-2, when it came to the vote. And ultimately that was a tech bill. And I think if, if we had more, even more sort of tech-savvy folks, we wouldn't have had such a such a fight with that bill.

CINDY COHN
And I think that he also pointed to something really important, which was this idea of after analysis, after-action thinking and looking back and saying, "Well, we passed this thing, did it do what we had hoped it would do?" as a way to really have a process where we can do error correction. And I noted that, you know, Ro Khanna and Elizabeth Warren have actually, and Senator Wyden, have floated a bill to have an investigation into FOSTA-SESTA, which, you know, for, for those who, who don't know the shorthand, this was a way that Section 230 was cut back, and protection was cut back. And the idea is that it could help stop sex trafficking. Well, all the data that we've seen so far is that it did not do that. And in some ways made sex trafficking,  you know, in the offline environment more dangerous. But having Congress actually step in and do and sponsor the research to figure out whether the bill that Congress passed did the thing that they said is, I think, just a critical piece of how we decide what we're going to do in order to protect individuals and innovation online.

JASON KELLEY
Yeah. For me, you know, it's actually tied to something that I know a lot of tech teams do which is like a sort of post-mortem. You know, after something happens, you really do need to investigate how we got there, what worked and what didn't, but in this case we all know, at least at EFF, that this was a bad bill.

CINDY COHN
Yeah, I mean, sometimes it might be just taking what we know anecdotally and turning it into something that Congress can more easily see and digest. Um, I think the other thing, it's just impossible to talk with or about Senator Wyden without talking about national security because he has just been heroic in his efforts to try to make sure that we don't trade privacy off for security. And that we recognize that these two things are linked and that by lifting up privacy, we're lifting up national security.
And by reducing privacy, we're not actually making ourselves safer. And he really has done more for this. And I think what was heartening about this conversation was that, you know, he talked about how he convinced national security hawks to support something that stood with privacy, this story about kind of really talking about how most of the Americans abroad are affiliated in one way or another with the U.S. military, people who are stationed abroad and their families, and how standing up for their privacy and framing it that way, you know, ultimately led to some success for this. Now, we've got a long ways to go, and I think he'd be the first one to agree. But the kind of doggedness and willingness to be in there for the long haul and talk to the national security folks about how, how these two values support each other is something that he has really proven that he's willing to do and it's so important.

JASON KELLEY
Yeah, that's exactly right, I think, as well. And it's also terrific that he's looking to the future, you know, we do know that he's thinking about these things, you know, 702 has been an issue for a long time and he's still focused on it, but what did you think of his thoughts about what our coming challenges are — things like how to deal with data in in a post-Dobbs world, for example?

CINDY COHN
Oh, I think he's right on, right on it. He's recognizing, I think as a lot of people have, that the Dobbs decision, overturning Roe v. Wade has really made it clear to a lot of people how vulnerable we are, based upon the data that we have to leave behind in what we do every day. Now you can do things to try to protect them, but there's only so much we can do right now without changes in the law and changes in the way things go because you know, your phone needs to know where you are in order to ring when somebody calls you or ping when somebody texts you.
So we need legal answers and he's correct that this is really coming into the fore right now. I think he's also thinking about the challenges that artificial intelligence are bringing. So I really appreciate that he's already thinking about how we fix the internet, you know, in the coming years, not just right now.

JASON KELLEY
I'm really glad we had this bouquet-throwing contest, I think was what he called it. Something like that. But yeah, I think it's great to have an ally and have them be in the Senate and I know he feels the same way about us.

CINDY COHN
Oh, absolutely. I mean, you know, part of the way we get to a better internet is to recognize the people who are doing the right thing. And so, you know, we spend a lot of time at EFF throwing rocks at the people who are doing the wrong thing. And that's really important too. But occasionally, you know, we get to throw some bouquets to the people who are fighting the good fight.

[THEME MUSIC FADES IN]

JASON KELLEY

Thanks for joining us for this episode of How To Fix the Internet.
If you have feedback or suggestions, we'd love to hear from you. Visit EFF.org/podcast and click on listener feedback. While you're there, you can become a member, donate, maybe pick up some merch and just see what's happening in digital rights this week and every week.
We’ve got a newsletter, EFFector, as well as social media accounts on many, many, many platforms.
This podcast is licensed Creative Commons Attribution 4.0 International, and includes music licensed Creative Commons Attribution 3.0 Unported by their creators.
In this episode you heard Kalte Ohren by Alex and Drops of H10 (The Filtered Water Treatment) by J. Lang
Our theme music is by Nat Keefe of BeatMower with Reed Mathis
How to Fix the Internet is supported by the Alfred P. Sloan Foundation's program in public understanding of science and technology.
We’ll talk to you again soon.
I’m Jason Kelley.

CINDY COHN
And I’m Cindy Cohn.

The authors of the dangerous Kids Online Safety Act (KOSA) unveiled an amended version this week, but it’s still an unconstitutional censorship bill that continues to empower state officials to target services and online content they do not like. We are asking everyone reading this to oppose this latest version, and to demand that their representatives oppose it—even if you have already done so. 

TAKE ACTION

TELL CONGRESS: OPPOSE THE KIDS ONLINE SAFETY ACT

KOSA remains a dangerous bill that would allow the government to decide what types of information can be shared and read online by everyone. It would still require an enormous number of websites, apps, and online platforms to filter and block legal, and important, speech. It would almost certainly still result in age verification requirements. Some of its provisions have changed over time, and its latest changes are detailed below. But those improvements do not cure KOSA’s core First Amendment problems. Moreover, a close review shows that state attorneys general still have a great deal of power to target online services and speech they do not like, which we think will harm children seeking access to basic health information and a variety of other content that officials deem harmful to minors.  

We’ll dive into the details of KOSA’s latest changes, but first we want to remind everyone of the stakes. KOSA is still a censorship bill and it will still harm a large number of minors who have First Amendment rights to access lawful speech online. It will endanger young people and impede the rights of everyone who uses the platforms, services, and websites affected by the bill. Based on our previous analyses, statements by its authors and various interest groups, as well as the overall politicization of youth education and online activity, we believe the following groups—to name just a few—will be endangered:  

• LGBTQ+ Youth will be at risk of having content, educational material, and their own online identities erased.  
• Young people searching for sexual health and reproductive rights information will find their search results stymied. 
• Teens and children in historically oppressed and marginalized groups will be unable to locate information about their history and shared experiences. 
• Activist youth on either side of the aisle, such as those fighting for changes to climate laws, gun laws, or religious rights, will be siloed, and unable to advocate and connect on platforms.  
• Young people seeking mental health help and information will be blocked from finding it, because even discussions of suicide, depression, anxiety, and eating disorders will be hidden from them. 
• Teens hoping to combat the problem of addiction—either their own, or that of their friends, families, and neighbors, will not have the resources they need to do so.  
• Any young person seeking truthful news or information that could be considered depressing will find it harder to educate themselves and engage in current events and honest discussion. 
• Adults in any of these groups who are unwilling to share their identities will find themselves shunted onto a second-class internet alongside the young people who have been denied access to this information. 

What’s Changed in the Latest (2024) Version of KOSA 

In its impact, the latest version of KOSA is not meaningfully different from those previous versions. The “duty of care” censorship section remains in the bill, though modified as we will explain below. The latest version removes the authority of state attorneys general to sue or prosecute people for not complying with the “duty of care.” But KOSA still permits these state officials to enforce other part of the bill based on their political whims and we expect those officials to use this new law to the same censorious ends as they would have of previous versions. And the legal requirements of KOSA are still only possible for sites to safely follow if they restrict access to content based on age, effectively mandating age verification.   

KOSA is still a censorship bill and it will still harm a large number of minors

Duty of Care is Still a Duty of Censorship 

Previously, KOSA outlined a wide collection of harms to minors that platforms had a duty to prevent and mitigate through “the design and operation” of their product. This includes self-harm, suicide, eating disorders, substance abuse, and bullying, among others. This seemingly anodyne requirement—that apps and websites must take measures to prevent some truly awful things from happening—would have led to overbroad censorship on otherwise legal, important topics for everyone as we’ve explained before.  

The updated duty of care says that a platform shall “exercise reasonable care in the creation and implementation of any design feature” to prevent and mitigate those harms. The difference is subtle, and ultimately, unimportant. There is no case law defining what is “reasonable care” in this context. This language still means increased liability merely for hosting and distributing otherwise legal content that the government—in this case the FTC—claims is harmful.  

Design Feature Liability 

The bigger textual change is that the bill now includes a definition of a “design feature,” which the bill requires platforms to limit for minors. The “design feature” of products that could lead to liability is defined as: 

any feature or component of a covered platform that will encourage or increase the frequency, time spent, or activity of minors on the covered platform, or activity of minors on the covered platform. 

Design features include but are not limited to 

(A) infinite scrolling or auto play; 

(B) rewards for time spent on the platform; 

(C) notifications; 

(D) personalized recommendation systems; 

(E) in-game purchases; or 

(F) appearance altering filters. 

These design features are a mix of basic elements and those that may be used to keep visitors on a site or platform. There are several problems with this provision. First, it’s not clear when offering basic features that many users rely on, such as notifications, by itself creates a harm. But that points to the fundamental problem of this provision. KOSA is essentially trying to use features of a service as a proxy to create liability for speech online that the bill’s authors do not like. But the list of harmful designs shows that the legislators backing KOSA want to regulate online content, not just design.   

For example, if an online service presented an endless scroll of math problems for children to complete, or rewarded children with virtual stickers and other prizes for reading digital children’s books, would lawmakers consider those design features harmful? Of course not. Infinite scroll and autoplay are generally not a concern for legislators. It’s that these lawmakers do not like some lawful content that is accessible via online service’s features. 

What KOSA tries to do here then is to launder restrictions on content that lawmakers do not like through liability for supposedly harmful “design features.” But the First Amendment still prohibits Congress from indirectly trying to censor lawful speech it disfavors.  

We shouldn’t kid ourselves that the latest version of KOSA will stop state officials from targeting vulnerable communities.

Allowing the government to ban content designs is a dangerous idea. If the FTC decided that direct messages, or encrypted messages, were leading to harm for minors—under this language they could bring an enforcement action against a platform that allowed users to send such messages. 

Regardless of whether we like infinite scroll or auto-play on platforms, these design features are protected by the First Amendment; just like the design features we do like. If the government tried to limit an online newspaper from using an infinite scroll feature or auto-playing videos, that case would be struck down. KOSA’s latest variant is no different.   

Attorneys General Can Still Use KOSA to Enact Political Agendas 

As we mentioned above, the enforcement available to attorneys general has been narrowed to no longer include the duty of care. But due to the rule of construction and the fact that attorneys general can still enforce other portions of KOSA, this is cold comfort. 

For example, it is true enough that the amendments to KOSA prohibit a state from targeting an online service based on claims that in hosting LGBTQ content that it violated KOSA’s duty of care. Yet that same official could use another provision of KOSA—which allows them to file suits based on failures in a platform’s design—to target the same content. The state attorney general could simply claim that they are not targeting the LGBTQ content, but rather the fact that the content was made available to minors via notifications, recommendations, or other features of a service. 

We shouldn’t kid ourselves that the latest version of KOSA will stop state officials from targeting vulnerable communities. And KOSA leaves all of the bill’s censorial powers with the FTC, a five-person commission nominated by the president. This still allows a small group of federal officials appointed by the President to decide what content is dangerous for young people. Placing this enforcement power with the FTC is still a First Amendment problem: no government official, state or federal, has the power to dictate by law what people can read online.  

The Long Fight Against KOSA Continues in 2024 

For two years now, EFF has laid out the clear arguments against this bill. KOSA creates liability if an online service fails to perfectly police a variety of content that the bill deems harmful to minors. Services have little room to make any mistakes if some content is later deemed harmful to minors and, as a result, are likely to restrict access to a broad spectrum of lawful speech, including information about health issues like eating disorders, drug addiction, and anxiety.  

The fight against KOSA has amassed an enormous coalition of people of all ages and all walks of life who know that censorship is not the right approach to protecting people online, and that the promise of the internet is one that must apply equally to everyone, regardless of age. Some of the people who have advocated against KOSA from day one have now graduated high school or college. But every time this bill returns, more people learn why we must stop it from becoming law.   

TAKE ACTION

TELL CONGRESS: OPPOSE THE KIDS ONLINE SAFETY ACT

We cannot afford to allow the government to decide what information is available online. Please contact your representatives today to tell them to stop the Kids Online Safety Act from moving forward. 

Earlier this week, EFF joined the ACLU and 59 partner organizations to send a letter to Senate Majority Leader Chuck Schumer urging the Senate to reject the STOP CSAM Act. This bill threatens encrypted communications and free speech online, and would actively harm LGBTQ+ people, people seeking reproductive care, and many others. EFF has consistently opposed this legislation. This bill has unacceptable consequences for free speech, privacy, and security that will affect how we connect, communicate, and organize.

TAKE ACTION

TELL CONGRESS NOT TO OUTLAW ENCRYPTED APPS

The STOP CSAM Act, as amended, would lead to censorship of First Amendment protected speech, including speech about reproductive health, sexual orientation and gender identity, and personal experiences related to gender, sex, and sexuality. Even today, without this bill, platforms regularly remove content that has vague ties to sex or sexuality for fear of liability. This would only increase if STOP CSAM incentivized apps and websites to exercise a heavier hand at content moderation.

If enacted, the STOP CSAM Act will also make it more difficult to communicate using end-to-end encryption. End-to-end encrypted communications cannot be read by anyone but the sender or recipient — that means authoritarian governments, malicious third parties, and the platforms themselves can’ read user messages. Offering encrypted services could open apps and websites up to liability, because a court could find that end-to-end encryption services are likely to be used for CSAM, and that merely offering them is reckless.

Congress should not pass this law, which will undermine security and free speech online. Existing law already requires online service providers who have actual knowledge of CSAM on their platforms to report that content to the National Center for Missing and Exploited Children (NCMEC), a quasi-government entity that works closely  with law enforcement agencies. Congress and the FTC have many tools already at their disposal to tackle CSAM, some of which are not used.