Josh Hawley Introduces His Latest Attack On Section 230

Legal Issues

from the collect-them-all dept

Guys, I’m beginning to get the feeling that Senator Josh Hawley doesn’t like Section 230. I mean, beyond creating a laughably inaccurate and misleading “True History of Section 230,” Hawley has now introduced at least four bills to modify or end Section 230. Perhaps if he introduces 10 he’ll get a free one. His latest, introduced last week would remove Section 230 for any internet company that has “behavioral advertising.” Now I’ve been skeptical of the value of behavioral advertising in many cases, but this new bill is absurd.

Basically what the bill would do is say that any site that uses behavioral advertising loses 230 protections:

An advertisement server shall be held liable for any claim brought against a covered provider because of the application of subparagraph (B) if, after the covered provider directs the advertisement server not to serve or deliver behavioral advertising to users of the interactive computer service described in subparagraph (A)(iii)(I)(aa) provided by the covered provider (or if the advertisement server fails to provide reasonably accessible means to receive that direction from the covered provider), the covered provider unknowingly takes the action described in subparagraph (B)(i) because of an action taken by the advertisement server, including the failure of the advertisement server to provide the covered provider with a conspicuous disclosure regarding the category of advertisements to be displayed.??.

Because all bills need to have terrible acronyms, this one is the Behavioral Advertising Decisions Are Downgrading Services Act — or the BAD ADS Act.

No matter what you think of behavioral ads — and again, I think they’re generally quite lame and don’t work nearly as well as people pretend — the structure of this bill seems absurd. Why should 230 protections have anything to do with what kind of advertising model you use? What does one have to do with another? And what job is it of Congress to change whether or not you’re protected from liability of 3rd party speech based on what kind of business model you use?

Again, this just seems like yet another example of Josh Hawley (who pretends to be a “small government” Republican) seemingly wanting to be the product manager for the internet. He doesn’t like Section 230. He doesn’t like behavioral advertising. So, no problem, as a Senator, he moves to outlaw them. Why? Because he doesn’t like them. This seems like the kind of big government intrusions into private business that Hawley used to scream about.

Of course, being in the Senate, rather than actually working for a living as a product manager, means that Hawley doesn’t have to deal with (or care about) the inevitable fallout from any such change to the law. It would almost certainly harm smaller companies which would be much more limited in what kinds of advertising they could use to support their own sites. As someone who would love to remove all behavioral advertising from our own site (and have tried to multiple times), we’ve found that the market just isn’t there for non-behavioral ads right now. That means it would likely dry up revenue for a ton of sites. Google and Facebook could figure out ways to deal with it. Everyone else? Who knows.

There are, of course, also significant Constitutional questions about this. Why should liability for 3rd party content depend on what kind of business model your site uses? The two seem wholly disconnected, and it seems that this bill could be seen as an attack on free speech and free enterprise (both things Hawley pretends to support). As with many Hawley bills, this one appears to be mostly for show, to appeal to his base of ignorant people who think there’s a culture war going on against “big tech” that plays out only by attacking Section 230.

Filed Under: advertising, behavioral ads, behavioral advertising, josh hawley, section 230, targeted advertising