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Legislative Update

Warner announces the Safe Tech Act to reform Section 230

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On February 5, 2021,  U.S. Sens. Mark R. Warner (D-VA), Mazie Hirono (D-HI), and Amy Klobuchar (D-MN) announced the Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms (SAFE TECH) Act to reform Section 230 and allow social media companies to be held accountable for enabling cyber-stalking, targeted harassment, and discrimination on their platforms.

“When Section 230 was enacted in 1996, the Internet looked very different than it does today. A law meant to encourage service providers to develop tools and policies to support effective moderation has instead conferred sweeping immunity on online providers even when they do nothing to address foreseeable, obvious, and repeated misuse of their products and services to cause harm,” said Sen. Warner, a former technology entrepreneur and the Chairman of the Senate Select Committee on Intelligence. “Section 230 has provided a ‘Get Out of Jail Free’ card to the largest platform companies even as their sites are used by scam artists, harassers, and violent extremists to cause damage and injury. This bill doesn’t interfere with free speech – it’s about allowing these platforms to finally be held accountable for harmful, often criminal behavior enabled by their platforms to which they have turned a blind eye for too long.”

“Section 230 was passed in 1996 to incentivize then-nascent internet companies to voluntarily police illegal and harmful content posted by their users. Now, twenty-five years later, the law allows some of the biggest companies in the world turn a blind eye while their platforms are used to violate civil and human rights, stalk and harass people, and defraud consumers—all without accountability,” Sen. Hirono said. “The SAFE TECH Act brings Section 230 into the modern age by creating targeted exceptions to the law’s broad immunity. Internet platforms must either address the serious harms they impose on society or face potential civil liability.”

“We need to be asking more from big tech companies, not less. How they operate has a real-life effect on the safety and civil rights of Americans and people around the world, as well as our democracy. Holding these platforms accountable for ads and content that can lead to real-world harm is critical, and this legislation will do just that,” said Sen. Klobuchar.


The SAFE TECH Act would make clear that Section 230:
• Doesn’t apply to ads or other paid content – ensuring that platforms cannot continue to profit as their services are used to target vulnerable consumers with ads enabling frauds and scams;
• Doesn’t bar injunctive relief – allowing victims to seek court orders where misuse of a provider’s services is likely to cause irreparable harm;
• Doesn’t impair the enforcement of civil rights laws – maintaining the vital and hard-fought protections from discrimination even when activities or services are mediated by internet platforms;
• Doesn’t interfere with laws that address stalking/cyber-stalking or harassment and intimidation on the basis of protected classes – ensuring that victims of abuse and targeted harassment can hold platforms accountable when they directly enable harmful activity;
• Doesn’t bar wrongful death actions – allowing the family of a decedent to bring suit against platforms where they may have directly contributed to a loss of life;
• Doesn’t bar suits under the Alien Tort Claims Act – potentially allowing victims of platform-enabled human rights violations abroad (like the survivors of the Rohingya genocide) to seek redress in U.S. courts against U.S.-based platforms.

These changes to Section 230 do not guarantee that platforms will be held liable in all, or even most, cases. Proposed changes do not subject platforms to strict liability; and the current legal standards for plaintiffs still present steep obstacles. Rather, these reforms ensure that victims have an opportunity to raise claims without Section 230 serving as a categorical bar to their efforts to seek legal redress for harms they suffer – even when directly enabled by a platform’s actions or design.

Bill text is available here. A three-page summary is available here. Frequently asked questions about the bill are available here. A redline of Section 230 is available here.

“Social media platforms and the tech companies that run them must protect their users from the growing and dangerous combination of misinformation and discrimination. As we have repeatedly seen, these platforms are being used to violate the civil rights of Black users and other users of color by serving as virtually-unchecked homes for hateful content and in areas such as housing and employment discrimination through the targeting and limiting of who can see certain advertisements. Section 230 must be strengthened to ensure that these online communities are not safe harbors for violations of civil rights laws. LDF supports Senator Warner and Senator Hirono’s bill as it addresses these critical concerns,” said Lisa Cylar Barrett, Director of Policy, NAACP Legal Defense and Educational Fund, Inc. (LDF)

“Tech companies must be held accountable for their roles in facilitating genocide, extremist violence and egregious civil rights abuses. We applaud Senators Hirono and Warner for their leadership in introducing a robust bill that focuses on supporting targets of civil and human rights abuses on social media while also addressing cyber-harassment and other crimes stemming from the spread of hate and disinformation. The sweeping legal protections enjoyed by tech platforms cannot continue,” said Jonathan A. Greenblatt, CEO of ADL (Anti-Defamation League).

“Platforms should not profit from targeting employment ads toward White users, or from targeting voter suppression ads toward Black users. Senator Warner and Senator Hirono’s comprehensive bill makes it clear that Section 230 does not give platforms a free pass to violate civil rights laws, while also preserving the power of platforms to remove harmful disinformation,” said Spencer Overton, President, Joint Center for Political and Economic Studies.

“I applaud the SAFE TECH Act introduced by Sens. Warner and Hirono which provides useful modifications to section 230 of the 1996 Communications Decency Act to limit the potential negative impacts of commercial advertising interests while continuing to protect anti-harassment and civil and human rights interests of those who may be wrongfully harmed through wrongful online activity,” Ramesh Srinivasan, Professor at the UCLA Department of Information Studies and Director of UC Digital Cultures Lab, said.

“Congress enacted 47 USC 230 in the mid-1990s to support online innovation and free speech but the way in which courts have very generously read Section 230 have meant there is no legal mechanism that has done more to insulate intermediaries from legal accountability for distributing, amplifying, and carefully delivering unlawful content and facilitating dangerous antisocial connections. Racist, misogynist, and violent anti-democratic forces coalesce online because intermediaries rarely have to account for their social impacts. Senator Warner and Senator Hirono’s proposed changes create a new and necessary incentive for such companies to be far more mindful of the social impacts of their services in areas of law that are of vital importance to the health of the networked information environment. It does this while not abandoning the protection for intermediaries’ distribution of otherwise lawful content,” said Olivier Sylvain, Professor at Fordham Law School and Director of the McGannon Center for Communications Research.

“We applaud Senator Warner and Senator Hirono’s important effort to reform Section 230 and thus bring greater accountability to the tech sector. Warner’s proposed reforms are crucial to protecting civil rights and making the web safer for those who have been negatively impacted by much that happens there, both online and off. We thank Senator Warner and Senator Hirono for tackling this critically important issue,” Wendy Via, Cofounder, Global Project Against Hate and Extremism, said.

“The Cyber Civil Rights Initiative welcomes this effort to protect civil rights in the digital age and to hold online intermediaries accountable for their role in the silencing and exploitation of vulnerable communities. This bill offers urgently needed provisions to limit and correct the overzealous interpretation of Section 230 that has granted a multibillion-dollar industry immunity and impunity for profiting from irreparable injury,” said Mary Anne Franks, President, Cyber Civil Rights Initiative, and Danielle K. Citron, Vice President, Cyber Civil Rights Initiative.

“For too long, companies like Facebook and YouTube have undermined the rights and safety of Muslims and communities of color in the U.S. and around the world. We have urged them to take responsibility for the targeted hate and violence, including genocide, facilitated by their platforms but these companies have refused to act,” said Madihha Ahussain, Muslim Advocates Special Counsel for Anti-Muslim Bigotry. “We appreciate Senators Warner and Hirono for introducing the SAFE TECH Act, which includes essential adjustments to Section 230 and will finally hold these companies accountable for violating people’s rights.”

“The SAFE TECH Act is an important step forward for platform accountability and for the protection of privacy online. Providing an opportunity for victims of harassment, privacy invasions, and other violations to remove unlawful content is critical to stopping its spread and limiting harm,” said Caitriona Fitzgerald, Interim Associate Director and Policy Director, Electronic Privacy Information Center (EPIC).

“The SAFE TECH Act is the Section 230 reform America needs now. Over-expansive readings of Section 230 have encouraged reckless and negligent shirking by platforms of basic duties toward their users. Few if any of the drafters of Section 230 could have imagined that it would be opportunistically seized on to deregulate online arms sales, protect sellers of defective merchandise, permit genocidaires to organize online with impunity, or allow dating sites to ignore campaigns of harassment and worse against their users. The SAFE TECH Act reins in the cyberlibertarian ethos of Section 230 imperialism, permitting courts to carefully weigh and assess evidence in cases where impunity is now preemptively assumed,” Frank Pasquale, Author of The Black Box Society and Professor at Brooklyn Law School, said.

“For far too long online platforms have placed profit over accountability and decency, and allowed misinformation, algorithmic discrimination, and online hate to be weaponized. When the Communications Decency Act was passed in 1996, no one imagined it would be used to shield the most valuable companies in the world from basic civil rights compliance,” said David Brody, Counsel and Senior Fellow for Privacy and Technology, Lawyers’ Committee for Civil Rights Under Law. “This bill would make irresponsible big tech companies accountable for the digital pollution they knowingly and willfully produce while continuing to protect free speech online. Black Americans and other communities of color are frequent targets of online hate, threats, and discrimination, and many of these online behaviors would not be tolerated if they occurred in a brick-and-mortar business. It is time that big tech stops treating our communities of color as second-class citizens, and give them the protection they deserve.”

“It is unacceptable that Big Tech enjoys near-total legal immunity from the harm that their platforms expose to children and families. Tech companies should not be able to hide behind Section 230 to avoid abiding by civil rights laws, court injunctions, and other protections for families and the most vulnerable in society. Reforms proposed by Sens. Warner and Hirono begin to change that. It is time to hold these companies accountable for the harms their platforms have unleashed on society,” said James P. Steyer, CEO, and Founder, Common Sense.

“The deadly insurrection at the Capitol made clear that lawmakers must take immediate action to ensure multi-billion-dollar social media companies, whose business models incentivize the unchecked spread of hate-fueled misinformation and violent clickbait conspiracies, can no longer abuse Section 230’s broad protections to evade civil rights laws,” said Arisha Hatch, Color Of Change Vice President and Chief of Campaigns. “The SAFE TECH Act from Sen. Warner and Sen. Hirono is critical. The proposed reform would not only prevent power-hungry social media companies from leveraging Section 230 to turn a blind eye to civil rights violations on their platforms, but it would also incentivize them to take down dangerous paid and organic content — and establish better protections against real-world harms like cyberstalking, which disproportionately impacts Black women. We strongly encourage members of Congress to support this legislation, which represents a significant step towards finally holding Big Tech accountable for their years-long role in enabling civil rights violations against Black communities.”

“After 2020 no-one is asking if online misinformation creates real-world harms – whether it’s COVID and anti-vaxx misinformation, election-related lies, or hate, it is now clear that action is needed to deal with unregulated digital platforms. Whereas users can freely spread hate and misinformation, platforms profit from traffic regardless of whether it is productive or damaging, the costs are borne by the public and society at large. This timely bill forensically delineates the harms and ensures perpetrators and enablers pay a price for the harms they create. In doing so, it reflects our desire for richer communication technologies, which enhance our right to speak and be heard, and that also respect our fundamental rights to life and safety,” said Imran Ahmed, CEO, Center for Countering Digital Hate.

“Our lives are at stake because hate and white supremacy are flourishing online. On January 6th we saw the results of what continuous disinformation and hate online can do with the insurrection and domestic terrorist attack on the U.S. Capitol, where five lives were lost,” said Brenda Victoria Castillo, President & CEO, National Hispanic Media Coalition. “It is time to hold online platforms accountable for their role in the radicalization and spread of extremist ideologies in our country. NHMC is proud to support Senator Warner’s limited reform of Section 230, and applauds his efforts to safeguard our democracy and the Latinx community.”

“Senator Mark Warner is a leader in ensuring that technology supports democracy even as it advances innovation. His and Senator Hirono’s new Section 230 reform bill now removes obstacles to enforcement against discrimination, cyber-stalking, and targeted harassment in the online world. The events of Jan 6 demonstrated that what happens online isn’t just a game. Online conspiracy theories, discrimination, and harassment are a public danger. The Warner-Hirono bill would go a long way toward addressing these dangers, and incentivizing platforms to move past the current, ineffective whack-a-mole approach to these important online harms,” said Karen Kornbluh, Director of the Digital Innovation and Democracy Initiative at the German Marshall Fund of the US and Former US Ambassador to the Organization for Economic Co-operation and Development.

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Legislative Update

Obenshain: New laws in Virginia that take effect July 1

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With the approach of July, I wanted to provide you with an update on new laws that are taking effect as well as an update on the Commonwealth’s budget.

Every year, the General Assembly passes bills during Session which starts in early January and goes for either 45 days or 60 days depending on if it’s a budget year or not. If bills pass the legislature, they go to the Governor and if he signs them into law, most will go into effect on July 1 of that year.

Additionally, every two years (on even-numbered years), the General Assembly passes the Commonwealth’s two-year budget which is then amended or signed by the Governor. Governor Youngkin recently sent back a short list of amendments on which the General Assembly then voted and on Wednesday, he signed the budget for the next two years.

Below is a list of some of the most notable and important items that will go into effect as well as items that would have been good for Virginians but were not passed this year.


• The budget included $4.2 billion in tax relief in the form of one-time tax rebates, a reduction in the grocery tax, tax relief for veterans, and an increase in the standard deduction.

$730 million was included for over two years for salary raises for teachers.

Law enforcement officers are receiving $113 million in overdue salary increases.

$45M in additional funds to support placing an SRO in schools that do not currently have one.

• The grocery tax was partially repealed. Despite pledging their support for its full repeal for years, the Democrats balked and would agree only to reduce it from 2.5 cents to 1 cent.

• Although my bill to expand the ability to open charter schools failed, the House and Senate passed a bill to allow for lab schools to be started in conjunction with colleges and universities across the Commonwealth.

Language was included in the budget to create a criminal charge for possession of over 4 ounces of marijuana.

• The House and Senate passed legislation that would make the votes of the Virginia Parole Board subject to the Freedom of Information Act.

• A bill requiring school principals to report to law enforcement and parents criminal offenses passed the House and Senate and was signed into law.

• On March 1, Youngkin signed an order that ended school mask mandates statewide. You can read more about it here.

• A bill requiring parental notification about sexually explicit material in schools passed the General Assembly.

• Senate Democrats defeated a bill that would have banned abortion after 20 weeks and a bill that would have required consent before an abortion.

• Senate Democrats defeated a number of bills that would have rolled back gun control efforts passed in past years by progressives. I outlined them in my update here.

Democrats voted in a block to reject Governor Youngkin’s proposed three-month gas tax holiday.

• My bill that would have reinstated Virginia’s photo ID requirement in order to vote was defeated in the Senate.

If you have any questions about laws that are going to be taking effect in July or any bills that did not make it out of the General Assembly this year, don’t hesitate to email me at mark@markobenshain.com.

Mark Obenshain

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Legislative Update

Warner & Kaine applaud Senate passage of Legislation to extend child nutrition waivers

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U.S. Sens. Mark R. Warner and Tim Kaine (both D-VA) applauded the Senate passage of legislation to extend critical COVID-era school lunch flexibilities that have prevented children all over the country from going hungry during the summer and throughout the school year. The passage of the Keep Kids Fed Act comes just one week before waivers are set to expire, imposing cumbersome restrictions on parents just as summer break kicks off.

“Parents across Virginia are facing higher costs across the board – the last thing they need right now is to lose the commonsense flexibilities that have made it easier for them to keep their kids fed. We’re very proud to have voted to pass bipartisan legislation that will extend these flexibilities and help keep food insecurity at bay. We hope that the House will pass this bill expeditiously and send it to the President’s desk for approval,” said the senators.

The Keep Kids Fed Act will:

  • Extend flexibilities for summer meals in 2022 by waiving area eligibility so summer providers can serve all children for free and continuing options like meal delivery and grab-and-go.
  • Extend some of the administrative and paperwork flexibilities for schools through the 2022-23 school year.
  • Allow students with a family income at or below 185 percent of the poverty level to qualify for free or reduced-cost meals for the 2022-23 school year.
  • Increase the reimbursement rate for school lunch and school breakfast to help offset the increased cost of food and operating expenses. Schools will receive an additional 40 cents for each lunch and 15 cents for each breakfast served.

Provide an additional 10 cents per meal or snack for Child and Adult Care Food Program (CACFP) daycares and home providers, and expand eligibility to more providers. When combined, these actions will help offset increased costs for providers.


Sens. Warner and Kaine have been vocal about the need to ensure that children have continuous access to healthy meals. They have expressed alarm about the imminent expiration of the child nutrition waivers and recently pushed Senate leadership to extend these flexibilities before the waivers expire. In April, they introduced the Support Kids Not Red-Tape Act – similar legislation to grant the U.S. Department of Agriculture (USDA) additional flexibility so that schools and summer meal sites can stay open.

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Legislative Update

Warner and Kaine: On passage of Bipartisan Safer Communities Act

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U.S. Sens. Mark R. Warner and Tim Kaine (both D-VA) released the following statement after the Senate voted to pass the Bipartisan Safer Communities Act – landmark legislation to curb gun violence in the wake of horrific mass shootings in Uvalde, Buffalo, and cities across the nation:

“Virginians know all too well the pain of gun violence—pain no one should have to experience. While nothing can bring back a life lost to gun violence, we are hopeful that the reasonable measures advanced through this bill will help curb the plague of shootings that continue to haunt American communities. We will continue to work to build on today’s milestone by advocating for additional measures to protect our neighborhoods from further senseless attacks. In the meantime, we urge our colleagues in the House to move quickly so that this bill can start saving lives.”

The Bipartisan Safer Communities Act includes similar provisions to those proposed by Sens. Warner and Kaine in their Virginia Plan to Reduce Gun Violence—a bill they introduced last year based on a series of commonsense measures adopted by Virginia. These provisions include improving background checks, strengthening safeguards for victims of domestic violence, and incentivizing states to implement their own Extreme Risk Protection Orders to remove firearms from individuals who pose a high risk of harming themselves or others.

The full text of the bill is available here. A summary of the bill is available here.



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Legislative Update

Warner statement on Supreme Court decision overruling Roe v. Wade

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WASHINGTON – U.S. Sen. Mark R. Warner (D-VA) issued the following statement after the Supreme Court overturned Roe v. Wade and eliminated the federal constitutional right to abortion in America:

“This decision jeopardizes the health and autonomy of millions of American women and turns back the clock on nearly 50 years of settled and reaffirmed law – reflecting a Court that has increasingly issued politicized rulings that undermine the fundamental rights of Americans. This decision will take control over personal health care decisions away from individuals and give it to politicians in state legislatures across the country. I am heartbroken for the generations of women who now have fewer rights than when they were born, many of whom will be forced into life-threatening or prohibitively expensive circumstances to access health care as a result of this radical decision. For them and for all Virginians and Americans, I will continue working to protect needed access to safe, legal abortion.”

In Roe v. Wade, the Supreme Court held that the Constitution of the United States protects a pregnant woman’s freedom to choose to have an abortion. The Court’s decision to overturn Roe v. Wade means that after nearly 50 years, this freedom is no longer guaranteed nationwide, and more than half of states are expected to ban or harshly limit access to abortion following today’s ruling. In several states, there will be no exceptions for women who become pregnant through rape or incest or in cases where abortion is necessary to protect the health of the woman.

Overturning Roe v. Wade also opens the door for states to attempt to restrict or ban common birth control methods such as Plan B or intrauterine devices.


 

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Legislative Update

Kaine statement on Supreme Court decision overruling Roe v. Wade

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WASHINGTON, D.C. – On June 24, 2022, U.S. Senator Tim Kaine released the following statement regarding the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization that the Constitution “does not confer a right to abortion,” overruling Roe v. Wade and Planned Parenthood v. Casey:

“I am deeply disturbed that the Supreme Court has overturned Roe v. Wade and Planned Parenthood v. Casey, upsetting decades of precedent protecting the right of women to make fundamental personal decisions about contraception and abortion without unnecessary government interference. That’s why I’ve been engaged in efforts in the Senate to codify the basic framework of Roe v. Wade and related cases into federal law. We’re not going to give up on the fight to protect the right to choose.”

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Legislative Update

Warner and Kaine announce $9 million in federal funding for affordable housing in Virginia

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WASHINGTON – U.S. Sens. Mark R. Warner and Tim Kaine (both D-VA) announced the designation of $9,000,000 in federal funding to three Virginia-based organizations helping to provide affordable housing and services to low-income individuals. The funds were administered by the United States Department of the Treasury’s Community Development Financial Institutions (CDFI) Fund through the department’s Capital Management Fund.

“Affordable, safe housing should be available to every Virginian,” the senators said. “This funding will allow Virginia organizations to continue their crucial work of securing housing for those in need.”

The funds will be broken down as follows:

• $5,000,000 for the Arlington Partnership for Affordable Housing, Inc. in Arlington, VA.
• $2,000,000 for AHC Inc. in Arlington, VA.
• $2,000,000 for the Piedmont Housing Alliance in Charlottesville, VA.


This funding comes in addition to the nearly $115 million in funding for affordable housing in Virginia announced earlier this year. Sens. Warner and Kaine, a former fair housing attorney, have long supported efforts to increase affordable housing in Virginia. The Senators have introduced legislation that would address rising home prices, assist first-generation homebuyers, and close the widening wealth and homeownership gaps. Also, Kaine led the introduction of the Fair Housing Improvement Act of 2022, which would expand protections under the Fair Housing Act of 1968 to include banning discrimination based on source of income, giving more individuals and families access to affordable housing, and a shot at economic mobility.

Sen. Warner has also been a leader in Congress for CDFI investment. To combat the hemorrhaging of jobs and economic opportunities during the pandemic, Sen. Warner led a bipartisan group of colleagues in introducing the Jobs and Neighborhood Investment Act. Sen. Warner was later able to secure provisions from the bill in the Coronavirus Response and Relief Supplemental Appropriations Act of 2021, which was signed into law on December 27, 2020, providing an unprecedented $12 billion in funding for CDFIs. Last week, Sen. Warner introduced legislation to help unlock more equity and long-term financial capital for CDFIs to boost economic growth in low-income communities.

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