'Is It Going To Pass?': Cliff Bentz Asks Whether Take It Down Act Has First Amendment Flaws

2 days ago

During a House Energy Committee hearing on examining harms online last week, Rep. Cliff Bentz (R-OR) questioned if the 'Take It Down Act' has the ability to pass.

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Transcript

00:00The gentlelady yields back. Now I'll recognize Mr. Vence for his five minutes of questioning.

00:06Thank you, Mr. Chair, and thanks to all the witnesses for being here today.

00:11In preparation for this hearing, I looked at the title and it said the World Wide Web

00:15Examining Online Harms. And, of course, I'm totally supportive of the fact that we are

00:20prioritizing kids, but I decided I would go back and take a quick look at just how much

00:25online time people were spending. So, I'm sure that all of you are aware of the fact

00:30that Americans now spend seven hours, three minutes a day, each one of us apparently online.

00:37We also, I looked at the ages, I see here from zero to eight, 2.5 hours, from eight

00:43to 10 years old, six hours, 11 to 14, nine hours, 15 to 18, 7.5 hours a day. So, when

00:50we talk about what we're going to do about this problem, boy, is it a big problem. A

00:55huge, almost insurmountable problem. And as I watch my kids and others, I note the

01:03diminishment of critical thinking, the diminishment of skills, the diminishment of self-sufficiency.

01:09There's no lack of problems created online. But I'm happy today that we're talking about

01:15children. I think that's obviously what we need to be doing. Ms. Morrell, your attorneys

01:20must have looked at this bill. Is it going to pass free speech scrutiny? Could you specify

01:27which bill? Well, I say this bill, I mean the Protect Our Kids bill. The Protect Our

01:33Kids bill? Yeah, the one we've been talking about the entire time today. Oh, take it down

01:38or? Take it down. Oh, take it down. Yeah, take it down, forgive me. To pass free speech

01:42concerns, I believe it would. This is just trying to say that platforms, because in Section

01:51230, there's a good Samaritan provision that incentivizes platforms and said you will be

01:55protected from liability for removing content that is obscene, lewd, lascivious, otherwise

02:01objectionable. But there has been no accompanying stick to that carrot. And what take it down

02:07would say is that platforms cannot host content if they are contacted knowingly. That is non

02:14consensual imagery and they need to remove that. And so I think it is well within the

02:18authority of the government to do that. So in anticipation of this hearing, I went and

02:24of course researched the take it down bill and looked at some of the critical comments

02:28on it. It appears that there are questions that have been raised by various commentators

02:32about it. And I think we heard Congressman Obernolte reference the fact that it's not

02:37a perfect bill. We want this bill to survive. So I hope you've reached out and whatever

02:44suggestions you have or anybody on the panel that we should change this bill, please tell

02:48us. Because in looking at the history of everyone trying to get this done, obviously, First

02:53Amendment issues are going to come up. Why I'm asking you questions. Your testimony touches

02:58on the limits of some content filtering tools available. I take it these things are not

03:04effective. Tell me why. Yes. So content filters have not been effective in the smartphone

03:10app based ecosystem because often filters do not have access to the material inside

03:15of apps. And so pornography today is not restricted to pornography websites. It's on social media

03:21itself. And as I mentioned in my opening, often social media is the first entry point

03:25for kids. And they don't they're not meaning to access it, but they stumble upon a link

03:29and they click on it. And because there's no age gating on these porn sites, they're

03:33immediately able to get through to Pornhub. And so the filters are not working. It's very

03:38difficult. They often don't filter the in app browsers that each individual application

03:43actually has its own portal to the Internet. And so it's been a incredibly difficult problem

03:48for parents on their own. And so that's why I've been supportive of solutions like age

03:52verification that would actually require the porn sites to verify this person is an

03:56adult before letting a child through because filters are just not working for parents.

04:01And the technology has changed over the last 20 years that has made it extremely difficult

04:06for filters to work. I want to move back to a much more difficult issue. That's Section

04:11230. So I was on judiciary until I had the good fortune of being selected for this particular

04:18committee. And I must say, in the days and weeks I spent studying Section 230, it appeared

04:23to me hugely challenging to change it. Do you have some suggestions on how we might

04:28actually do that? A couple quick suggestions. I would say one

04:32critical thing would just be to clarify that Section 230 does not apply to product design

04:41to the company's own wrongdoing or their own algorithms as their product. I think that

04:46has been an issue that we've seen of lawsuits getting thrown out in court claiming Section

04:50230 immunity when it was not the speech the platform was hosting of third parties, but

04:55it was actually the product design of those platforms, algorithms connecting sex traffickers

05:00to their victims or promoting blackout challenges into the feet of a 10-year-old girl who then

05:05took her life by accident. And so I think it's really important to clarify

05:08Section 230 was not meant to cover product design. I would also say a bad Samaritan carve

05:14out to say that if you are knowingly hosting criminal content or criminal behavior on your

05:19website, you do not get to hide behind Section 230's immunity. To accompany the good Samaritan

05:24provision, we need a kind of commensurate bad Samaritan carve out for knowingly hosting

05:30criminal material. Thank you. Yield back.

'Is It Going To Pass?': Cliff Bentz Asks Whether Take It Down Act Has First Amendment Flaws

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