Michael Zimmerman
2023-12-13 02:10:21 UTC
December 11, 2023
The Honorable Charles E. Schumer
Majority Leader
United States Senate
322 Hart Senate Office Building
Washington, D.C. 20510
The Honorable Mitch McConnell
Minority Leader
United States Senate
317 Russell Senate Office Building
Washington, D.C. 20510
Re: S. 1993, “No Section 230 Immunity for AI Act”
Dear Majority Leader Schumer and Minority Leader McConnell:
We, the undersigned organizations and individuals, write to express
serious concerns about
the “No Section 230 Immunity for AI Act” (S. 1993). S. 1993 would
threaten freedom of
expression, content moderation, and innovation. Far from targeting any
clear problem, the
bill takes a sweeping, overly broad approach, preempting an important
public policy debate
without sufficient consideration of the complexities at hand.
Section 230 makes it possible for online services to host user-generated
content, by ensuring
that only users are liable for what they post—not the apps and websites
that host the speech.
S. 1993 would undo this critical protection, exposing online services to
lawsuits for content
whenever the service offers or uses any AI tool that is technically
capable of generating any
kind of new material. The now widespread deployment of AI for content
composition,
recommendation, and moderation would effectively render any website or
app liable for
virtually all content posted to them.
S. 1993 would preempt an important and necessary policy debate. As a
threshold
matter, even proponents of Section 230 disagree on whether and to what
extent the law
immunizes GenAI providers from treatment as the publisher of their
tools’ outputs. While
some argue that Section 230’s protections logically extend to the output
of GenAI tools,1
others—including Section 230’s authors—take the position that GenAI
tools create new
1 Jess Miers, Yes, Section 230 Should Protect ChatGPT And Other
Generative AI Tools, TECHDIRT (Mar. 17, 2023,
11:59 AM),
https://www.techdirt.com/2023/03/17/yes-section-230-should-protect-chatgpt-and-othersgenerative-ai-tools/
(“ChatGPT (and similarly situated generative AI products) are
functionally akin to
‘ordinary search engines’ and predictive technology like autocomplete.”).
2
content that the tools’ purveyors are responsible for “developing,” at
least “in part.”2 Still
others would argue that the question of whether Section 230 extends to
GenAI output
depends on the context in which it was used. The courts have not yet
ruled on these
questions. S.1993 would cut off this critical debate with overbroad
language that could cause
more problems than it fixes.
Carving out state law will lead to censorship. Section 230 was written
to establish a
consistent nationwide body of law for liability for content on the
Internet. S. 1993 would
effectively undo this benefit by carving out of Section 230 any civil
claim or criminal charge
brought under state law for conduct involving “the use or provision” of
GenAI. This would
enable politically motivated actors to censor online content they dislike.
Recent history illustrates the stakes: In March 2023, a bill was
introduced in the Texas House
of Representatives to criminalize providing “information on how to
obtain an abortioninducing drug,” and create civil liability for any
interactive computer service that “allows
residents of [Texas] to access information or material that assists or
facilitates efforts to
obtain elective abortions or abortion-inducing drugs.”3
Had this bill been enacted into law, Section 230 would have precluded
its enforcement. But
under S. 1993, it would be enforceable if the offending content was
posted by anyone on any
service that provides GenAI tools to its users—or even deploys GenAI for
content
moderation, as discussed below. S. 1993 would undoubtedly lead a wave of
similar
legislation targeting disfavored expression, from LGBTQ content to hate
speech.4 At best, the
result would be chaos and endless litigation. At worst, government
officials will have been
handed a ready-made tool to successfully fracture and censor the Internet.
2 Cristiano Lima, AI chatbots won’t enjoy tech’s legal shield, Section
230 authors say, WASH. POST (Mar. 17, 2023,
9:03 AM),
https://www.washingtonpost.com/politics/2023/03/17/ai-chatbots-wont-enjoy-techs-legalshield-section-230-authors-say/.
See also Matt Perault, Section 230 Won’t Protect ChatGPT, LAWFARE (Feb. 22,
2023, 1:11 PM),
https://www.lawfaremedia.org/article/section-230-wont-protect-chatgpt. 3
See Jennifer Pinsof, This Texas Bill Would Systematically Silence Anyone
Who Dares to Talk About Abortion
Pills, EFF (Mar. 13, 2023),
https://www.eff.org/deeplinks/2023/03/texas-bill-would-systematically-silenceanyone-who-dares-talk-about-abortion-pills.
4 States are already targeting politically disfavored content. See,
e.g., New York can’t target protected online
speech by calling it ‘hateful conduct’, FIRE (Dec. 1, 2022),
https://www.thefire.org/news/lawsuit-new-yorkcant-target-protected-online-speech-calling-it-hateful-conduct
(“The law forces internet platforms of all
stripes to publish a policy explaining how they will respond to online
expression that could ‘vilify, humiliate,
or incite violence’ based on a protected class, like religion, gender,
or race.”). And some states plan to use
proposed federal laws to shut down LGBTQ speech. See, e.g., Mike
Masnick, Heritage Foundation Says That Of
Course GOP Will Use KOSA To Censor LGBTQ Content, TECHDIRT (May 24,
2023, 12:26 PM),
https://www.techdirt.com/2023/05/24/heritage-foundation-says-that-of-course-gop-will-use-kosa-tocensor-lgbtq-content/;
Jared Eckert & Mary McCloskey, How Big Tech Turns Kids Trans, THE HERITAGE
FOUNDATION (Sept. 15, 2022),
https://www.heritage.org/gender/commentary/how-big-tech-turns-kids-trans
(“[W]e must guard against the harms of sexual and transgender content.”).
3
S. 1993 will benefit vexatious litigants. The bill’s definition of GenAI
(“an artificial
intelligence system that is capable of generating novel [content] based
on prompts or other
forms of data provided by a person”) is broad enough to encompass tools
as basic and
commonplace as predictive text (autocomplete), autocorrect, and
potentially even search
autocomplete suggestions or grammar and spellchecking features, as well
as any other AIgenerated content.
A core function of Section 230 is to provide for the early dismissal of
claims and avoid the
“death by ten thousand duck-bites” of costly, endless litigation.5 This
bill provides an easy
end-run around that function: simply by plausibly alleging that GenAI
was somehow
involved with the content at issue, plaintiffs could force services into
protracted litigation in
hopes of extracting a settlement for even meritless claims.
The bill misallocates liability and rewards malicious actors. S. 1993
would, inexplicably,
reverse Section 230’s sensible allocation of legal liability to the
party ultimately responsible
for the wrongfulness of content. Again, under S. 1993, the provision or
use of any AI tool
technically capable of generating some form of content, from predictive
text to content
moderation tools, would effectively expose platforms and online services
to liability for any
content it hosts or enables the creation of.
Consider a musician who utilizes a platform offering a GenAI production
tool to compose a
song including synthesized vocals with lyrics expressing legally harmful
lies (libel) about a
person. Even if the lyrics were provided wholly by the musician, the
conduct underlying the
ensuing libel lawsuit would undoubtedly “involve the use or provision”
of GenAI—exposing
the tool’s provider to litigation. In fact, the tool’s provider could
lose immunity even if it did
not synthesize the vocals, simply because the tool is capable of doing so.6
Like any tool, GenAI can be misused by malicious actors, and there is no
sure way to prevent
such uses—every safeguard is ultimately circumventable. Stripping
immunity from services
that offer those tools irrespective of their relation to the content
does not just ignore this
reality, it incentivizes it. The ill-intentioned, knowing that the
typically deep pockets of GenAI
providers are a more attractive target to the plaintiffs’ bar, will only
be further encouraged
to find ways to misuse GenAI.
Still more perversely, malicious actors may find themselves immunized by
the same
protection that S. 1993 strips from GenAI providers. Section 230(c)(1)
protects both
providers of interactive computer services and users from being treated
as the publisher of
third-party content. But S. 1993 only excludes the former from Section
230 protection. If
Section 230 does indeed protect GenAI output to at least some degree as
the proponents of
5 Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521
F.3d 1157, 1174 (9th Cir. 2008).
6 S. 1993, 118 Cong. (2023),
https://www.congress.gov/bill/118th-congress/senate-bill/1993/text.
4
this bill fear, the malicious user who manipulates ChatGPT into
providing a defamatory
response 7 would be immunized for re-posting that content, while OpenAI
would face
liability.
S. 1993 will make content moderation harder, worse—and more biased.
AI-powered
content moderation tools are now ubiquitous; they have the potential to
increase
consistency, decrease bias, and provide a measure of relief to
beleaguered human
moderators who sift through the worst content imaginable at great cost
to their well-being.8
But because most lawsuits regarding content moderation decisions are
dismissed under
Section 230(c)(1), this bill threatens the viability of the development
and use of such tools.
OpenAI, as just one example, has deployed GPT-4 to assist in revising
its content policies by
prompting it with a policy and feeding it sample content, examining the
labels and reasoning
assigned by GPT-4 to that content, and then clarifying the policy until
the AI achieves
satisfactory results. 9 This process itself may preclude OpenAI from
invoking Section
230(c)(1) in a lawsuit over its content moderation decisions: the
creation of the policy
applied to moderated content would appear to be part and parcel of the
“conduct underlying
the claim.”
AI tools are also increasingly used by a variety of platforms and
services to perform day-today content moderation functions, which would
similarly strip moderation decisions of their
Section 230(c)(1) immunity. An AI-generated content flag, accompanied by
a generated
explanation of the relevant policy’s application, is surely a “use” of
GenAI. But even if the
moderation tool did not provide a generated explanation (“novel text”),
it would still lose
immunity; the GenAI need not actually generate anything—the mere fact
that it is capable of
doing so (which GPT-4 plainly is) would bring it under S. 1993’s exclusion.
7 See Adam Thierer & Shoshana Weissmann, Without Section 230
Protections, Generative AI Innovation Will Be
Decimated, R STREET INSTITUTE (Dec. 6, 2023),
https://www.rstreet.org/commentary/without-section-230-
protections-generative-ai-innovation-will-be-decimated/ (“The person
typing in the request was the one
intending to create libel, but the AI company would be liable too.”).
8 See, e.g., Andrew Arsht & Daniel Etcovitch, The Human Cost of Online
Content Moderation, JOLT DIGEST (Mar.
2, 2018),
https://jolt.law.harvard.edu/digest/the-human-cost-of-online-content-moderation
(“Some
journalists, scholars, and analysts have noted PTSD-like symptoms and
other mental health issues arising
among moderators.”); Jaspreet Singh, OpenAI says AI tools can be
effective in content moderation, REUTERS
(Aug. 15, 2023),
https://www.reuters.com/technology/openai-says-ai-tools-can-be-effective-contentmoderation-2023-08-15/;
Aditya Jain, Impact of Generative AI on Content Moderation, AVASANT
(July 2023),
https://avasant.com/report/impact-of-generative-ai-on-contentmoderation/#:~:text=AI%20Content%20vs.-
,Traditional%20Content,cultural%20references%2C%20and%20subtle%20nuances.
9 See Lilian Weng et al., Using GPT-4 for content moderation, OPENAI
(Aug. 15, 2023),
https://openai.com/blog/using-gpt-4-for-content-moderation. See also
Kyle Wiggers, OpenAI proposes a new
way to use GPT-4 for content moderation, TECHCRUNCH (Aug. 15, 2023, 2:15
PM),
https://techcrunch.com/2023/08/15/openai-proposes-a-new-way-to-use-gpt-4-for-content-moderation/.
5
This unfortunate result may indeed be the intended one. S. 1993 leaves
untouched Section
230(c)(2)(A), which Section 230 critics argue should be the sole
protection for content
moderation decisions. Under Section 230(c)(2)(A), defendants must show
that they
“voluntarily” removed objectionable content “in good faith.” This
standard is highly factdependent; as such, defendants would no longer
be able to resolve lawsuits on motion to
dismiss. This, in turn, would allow plaintiffs to exact heavy discovery
costs on any platform
attempting to defend its moderation decisions. Indeed, it is unclear how
the “good faith” of
AI could ever be established. What is clear is that the development and
use of valuable AIbased content moderation tools will be
disincentivized by the high costs imposed by S. 1993.
S. 1993’s breadth disincentivizes all GenAI tools. As noted above, the
bill’s definition of
GenAI (“an artificial intelligence system that is capable of generating
novel [content] based
on prompts or other forms of data provided by a person”) would encompass
commonplace
tools like predictive text (autocomplete), autocorrect, and potentially
even grammar and
spellchecking features.
This extensive definition is particularly troubling because S. 1993 is
not limited to instances
where GenAI contributed to the tortious or illegal nature of content.
Rather, S. 1993 excludes
from Section 230(c)(1)’s protection any claim based on conduct that
“involves the use or
provision of [GenAI].” Thus, a social media platform could find itself
facing liability for all its
users’ posts simply because it provided predictive text or grammar
suggestions (both forms
of GenAI) to aid users in expressing their own ideas—or even because it
utilizes GenAI for
content recommendation and moderation.
Moreover, while S. 1993 would only exclude GenAI use or provision “by
the interactive
computer service,” in practice, a social media platform has no reliable
way to discern
whether a piece of content posted to it was created using one of their
own GenAI tools; users
might have saved or copied GenAI output for later use. In this way, too,
platforms would have
to choose between not offering any GenAI tools or risking liability for
every piece of content
posted on their service. The latter result would effectively be
tantamount to a full repeal of
Section 230.
GenAI has become increasingly important in the creation of online
content, and it promises
to make our communications more effective, inexpensive, and accessible.
Congress should
not inhibit these exciting advancements by forcing online services to
choose between
foregoing use of GenAI technology or exposing themselves to crushing
liability.
—
Generative Artificial Intelligence is a complex issue that deserves
careful thought and
nuanced, precise legislation—not a rigid, heavy-handed overreaction that
threatens to
6
undermine free speech, user safety, and American competitiveness in the
AI marketplace.
We urge Congress to consider a more thoughtful approach.
If you have any questions or would like to discuss the issues in this
letter further, please
contact Ari Cohn at ***@techfreedom.org.
Sincerely,
Organizations
American Civil Liberties Union
American Library Association
Americans for Prosperity
Association of Research Libraries
Center for Democracy and Technology
Chamber of Progress
Competitive Enterprise Institute
Computer & Communications Industry Association
Consumer Technology Association
Copia Institute
Electronic Frontier Foundation
Engine
Foundation for Individual Rights and Expression
Internet Infrastructure Coalition
R Street Institute
Software & Information Industry Association
Taxpayers Protection Alliance
TechFreedom
Individuals
Joshua Levine, American Action Forum*
*Affiliation listed for identification purposes only
The Honorable Charles E. Schumer
Majority Leader
United States Senate
322 Hart Senate Office Building
Washington, D.C. 20510
The Honorable Mitch McConnell
Minority Leader
United States Senate
317 Russell Senate Office Building
Washington, D.C. 20510
Re: S. 1993, “No Section 230 Immunity for AI Act”
Dear Majority Leader Schumer and Minority Leader McConnell:
We, the undersigned organizations and individuals, write to express
serious concerns about
the “No Section 230 Immunity for AI Act” (S. 1993). S. 1993 would
threaten freedom of
expression, content moderation, and innovation. Far from targeting any
clear problem, the
bill takes a sweeping, overly broad approach, preempting an important
public policy debate
without sufficient consideration of the complexities at hand.
Section 230 makes it possible for online services to host user-generated
content, by ensuring
that only users are liable for what they post—not the apps and websites
that host the speech.
S. 1993 would undo this critical protection, exposing online services to
lawsuits for content
whenever the service offers or uses any AI tool that is technically
capable of generating any
kind of new material. The now widespread deployment of AI for content
composition,
recommendation, and moderation would effectively render any website or
app liable for
virtually all content posted to them.
S. 1993 would preempt an important and necessary policy debate. As a
threshold
matter, even proponents of Section 230 disagree on whether and to what
extent the law
immunizes GenAI providers from treatment as the publisher of their
tools’ outputs. While
some argue that Section 230’s protections logically extend to the output
of GenAI tools,1
others—including Section 230’s authors—take the position that GenAI
tools create new
1 Jess Miers, Yes, Section 230 Should Protect ChatGPT And Other
Generative AI Tools, TECHDIRT (Mar. 17, 2023,
11:59 AM),
https://www.techdirt.com/2023/03/17/yes-section-230-should-protect-chatgpt-and-othersgenerative-ai-tools/
(“ChatGPT (and similarly situated generative AI products) are
functionally akin to
‘ordinary search engines’ and predictive technology like autocomplete.”).
2
content that the tools’ purveyors are responsible for “developing,” at
least “in part.”2 Still
others would argue that the question of whether Section 230 extends to
GenAI output
depends on the context in which it was used. The courts have not yet
ruled on these
questions. S.1993 would cut off this critical debate with overbroad
language that could cause
more problems than it fixes.
Carving out state law will lead to censorship. Section 230 was written
to establish a
consistent nationwide body of law for liability for content on the
Internet. S. 1993 would
effectively undo this benefit by carving out of Section 230 any civil
claim or criminal charge
brought under state law for conduct involving “the use or provision” of
GenAI. This would
enable politically motivated actors to censor online content they dislike.
Recent history illustrates the stakes: In March 2023, a bill was
introduced in the Texas House
of Representatives to criminalize providing “information on how to
obtain an abortioninducing drug,” and create civil liability for any
interactive computer service that “allows
residents of [Texas] to access information or material that assists or
facilitates efforts to
obtain elective abortions or abortion-inducing drugs.”3
Had this bill been enacted into law, Section 230 would have precluded
its enforcement. But
under S. 1993, it would be enforceable if the offending content was
posted by anyone on any
service that provides GenAI tools to its users—or even deploys GenAI for
content
moderation, as discussed below. S. 1993 would undoubtedly lead a wave of
similar
legislation targeting disfavored expression, from LGBTQ content to hate
speech.4 At best, the
result would be chaos and endless litigation. At worst, government
officials will have been
handed a ready-made tool to successfully fracture and censor the Internet.
2 Cristiano Lima, AI chatbots won’t enjoy tech’s legal shield, Section
230 authors say, WASH. POST (Mar. 17, 2023,
9:03 AM),
https://www.washingtonpost.com/politics/2023/03/17/ai-chatbots-wont-enjoy-techs-legalshield-section-230-authors-say/.
See also Matt Perault, Section 230 Won’t Protect ChatGPT, LAWFARE (Feb. 22,
2023, 1:11 PM),
https://www.lawfaremedia.org/article/section-230-wont-protect-chatgpt. 3
See Jennifer Pinsof, This Texas Bill Would Systematically Silence Anyone
Who Dares to Talk About Abortion
Pills, EFF (Mar. 13, 2023),
https://www.eff.org/deeplinks/2023/03/texas-bill-would-systematically-silenceanyone-who-dares-talk-about-abortion-pills.
4 States are already targeting politically disfavored content. See,
e.g., New York can’t target protected online
speech by calling it ‘hateful conduct’, FIRE (Dec. 1, 2022),
https://www.thefire.org/news/lawsuit-new-yorkcant-target-protected-online-speech-calling-it-hateful-conduct
(“The law forces internet platforms of all
stripes to publish a policy explaining how they will respond to online
expression that could ‘vilify, humiliate,
or incite violence’ based on a protected class, like religion, gender,
or race.”). And some states plan to use
proposed federal laws to shut down LGBTQ speech. See, e.g., Mike
Masnick, Heritage Foundation Says That Of
Course GOP Will Use KOSA To Censor LGBTQ Content, TECHDIRT (May 24,
2023, 12:26 PM),
https://www.techdirt.com/2023/05/24/heritage-foundation-says-that-of-course-gop-will-use-kosa-tocensor-lgbtq-content/;
Jared Eckert & Mary McCloskey, How Big Tech Turns Kids Trans, THE HERITAGE
FOUNDATION (Sept. 15, 2022),
https://www.heritage.org/gender/commentary/how-big-tech-turns-kids-trans
(“[W]e must guard against the harms of sexual and transgender content.”).
3
S. 1993 will benefit vexatious litigants. The bill’s definition of GenAI
(“an artificial
intelligence system that is capable of generating novel [content] based
on prompts or other
forms of data provided by a person”) is broad enough to encompass tools
as basic and
commonplace as predictive text (autocomplete), autocorrect, and
potentially even search
autocomplete suggestions or grammar and spellchecking features, as well
as any other AIgenerated content.
A core function of Section 230 is to provide for the early dismissal of
claims and avoid the
“death by ten thousand duck-bites” of costly, endless litigation.5 This
bill provides an easy
end-run around that function: simply by plausibly alleging that GenAI
was somehow
involved with the content at issue, plaintiffs could force services into
protracted litigation in
hopes of extracting a settlement for even meritless claims.
The bill misallocates liability and rewards malicious actors. S. 1993
would, inexplicably,
reverse Section 230’s sensible allocation of legal liability to the
party ultimately responsible
for the wrongfulness of content. Again, under S. 1993, the provision or
use of any AI tool
technically capable of generating some form of content, from predictive
text to content
moderation tools, would effectively expose platforms and online services
to liability for any
content it hosts or enables the creation of.
Consider a musician who utilizes a platform offering a GenAI production
tool to compose a
song including synthesized vocals with lyrics expressing legally harmful
lies (libel) about a
person. Even if the lyrics were provided wholly by the musician, the
conduct underlying the
ensuing libel lawsuit would undoubtedly “involve the use or provision”
of GenAI—exposing
the tool’s provider to litigation. In fact, the tool’s provider could
lose immunity even if it did
not synthesize the vocals, simply because the tool is capable of doing so.6
Like any tool, GenAI can be misused by malicious actors, and there is no
sure way to prevent
such uses—every safeguard is ultimately circumventable. Stripping
immunity from services
that offer those tools irrespective of their relation to the content
does not just ignore this
reality, it incentivizes it. The ill-intentioned, knowing that the
typically deep pockets of GenAI
providers are a more attractive target to the plaintiffs’ bar, will only
be further encouraged
to find ways to misuse GenAI.
Still more perversely, malicious actors may find themselves immunized by
the same
protection that S. 1993 strips from GenAI providers. Section 230(c)(1)
protects both
providers of interactive computer services and users from being treated
as the publisher of
third-party content. But S. 1993 only excludes the former from Section
230 protection. If
Section 230 does indeed protect GenAI output to at least some degree as
the proponents of
5 Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521
F.3d 1157, 1174 (9th Cir. 2008).
6 S. 1993, 118 Cong. (2023),
https://www.congress.gov/bill/118th-congress/senate-bill/1993/text.
4
this bill fear, the malicious user who manipulates ChatGPT into
providing a defamatory
response 7 would be immunized for re-posting that content, while OpenAI
would face
liability.
S. 1993 will make content moderation harder, worse—and more biased.
AI-powered
content moderation tools are now ubiquitous; they have the potential to
increase
consistency, decrease bias, and provide a measure of relief to
beleaguered human
moderators who sift through the worst content imaginable at great cost
to their well-being.8
But because most lawsuits regarding content moderation decisions are
dismissed under
Section 230(c)(1), this bill threatens the viability of the development
and use of such tools.
OpenAI, as just one example, has deployed GPT-4 to assist in revising
its content policies by
prompting it with a policy and feeding it sample content, examining the
labels and reasoning
assigned by GPT-4 to that content, and then clarifying the policy until
the AI achieves
satisfactory results. 9 This process itself may preclude OpenAI from
invoking Section
230(c)(1) in a lawsuit over its content moderation decisions: the
creation of the policy
applied to moderated content would appear to be part and parcel of the
“conduct underlying
the claim.”
AI tools are also increasingly used by a variety of platforms and
services to perform day-today content moderation functions, which would
similarly strip moderation decisions of their
Section 230(c)(1) immunity. An AI-generated content flag, accompanied by
a generated
explanation of the relevant policy’s application, is surely a “use” of
GenAI. But even if the
moderation tool did not provide a generated explanation (“novel text”),
it would still lose
immunity; the GenAI need not actually generate anything—the mere fact
that it is capable of
doing so (which GPT-4 plainly is) would bring it under S. 1993’s exclusion.
7 See Adam Thierer & Shoshana Weissmann, Without Section 230
Protections, Generative AI Innovation Will Be
Decimated, R STREET INSTITUTE (Dec. 6, 2023),
https://www.rstreet.org/commentary/without-section-230-
protections-generative-ai-innovation-will-be-decimated/ (“The person
typing in the request was the one
intending to create libel, but the AI company would be liable too.”).
8 See, e.g., Andrew Arsht & Daniel Etcovitch, The Human Cost of Online
Content Moderation, JOLT DIGEST (Mar.
2, 2018),
https://jolt.law.harvard.edu/digest/the-human-cost-of-online-content-moderation
(“Some
journalists, scholars, and analysts have noted PTSD-like symptoms and
other mental health issues arising
among moderators.”); Jaspreet Singh, OpenAI says AI tools can be
effective in content moderation, REUTERS
(Aug. 15, 2023),
https://www.reuters.com/technology/openai-says-ai-tools-can-be-effective-contentmoderation-2023-08-15/;
Aditya Jain, Impact of Generative AI on Content Moderation, AVASANT
(July 2023),
https://avasant.com/report/impact-of-generative-ai-on-contentmoderation/#:~:text=AI%20Content%20vs.-
,Traditional%20Content,cultural%20references%2C%20and%20subtle%20nuances.
9 See Lilian Weng et al., Using GPT-4 for content moderation, OPENAI
(Aug. 15, 2023),
https://openai.com/blog/using-gpt-4-for-content-moderation. See also
Kyle Wiggers, OpenAI proposes a new
way to use GPT-4 for content moderation, TECHCRUNCH (Aug. 15, 2023, 2:15
PM),
https://techcrunch.com/2023/08/15/openai-proposes-a-new-way-to-use-gpt-4-for-content-moderation/.
5
This unfortunate result may indeed be the intended one. S. 1993 leaves
untouched Section
230(c)(2)(A), which Section 230 critics argue should be the sole
protection for content
moderation decisions. Under Section 230(c)(2)(A), defendants must show
that they
“voluntarily” removed objectionable content “in good faith.” This
standard is highly factdependent; as such, defendants would no longer
be able to resolve lawsuits on motion to
dismiss. This, in turn, would allow plaintiffs to exact heavy discovery
costs on any platform
attempting to defend its moderation decisions. Indeed, it is unclear how
the “good faith” of
AI could ever be established. What is clear is that the development and
use of valuable AIbased content moderation tools will be
disincentivized by the high costs imposed by S. 1993.
S. 1993’s breadth disincentivizes all GenAI tools. As noted above, the
bill’s definition of
GenAI (“an artificial intelligence system that is capable of generating
novel [content] based
on prompts or other forms of data provided by a person”) would encompass
commonplace
tools like predictive text (autocomplete), autocorrect, and potentially
even grammar and
spellchecking features.
This extensive definition is particularly troubling because S. 1993 is
not limited to instances
where GenAI contributed to the tortious or illegal nature of content.
Rather, S. 1993 excludes
from Section 230(c)(1)’s protection any claim based on conduct that
“involves the use or
provision of [GenAI].” Thus, a social media platform could find itself
facing liability for all its
users’ posts simply because it provided predictive text or grammar
suggestions (both forms
of GenAI) to aid users in expressing their own ideas—or even because it
utilizes GenAI for
content recommendation and moderation.
Moreover, while S. 1993 would only exclude GenAI use or provision “by
the interactive
computer service,” in practice, a social media platform has no reliable
way to discern
whether a piece of content posted to it was created using one of their
own GenAI tools; users
might have saved or copied GenAI output for later use. In this way, too,
platforms would have
to choose between not offering any GenAI tools or risking liability for
every piece of content
posted on their service. The latter result would effectively be
tantamount to a full repeal of
Section 230.
GenAI has become increasingly important in the creation of online
content, and it promises
to make our communications more effective, inexpensive, and accessible.
Congress should
not inhibit these exciting advancements by forcing online services to
choose between
foregoing use of GenAI technology or exposing themselves to crushing
liability.
—
Generative Artificial Intelligence is a complex issue that deserves
careful thought and
nuanced, precise legislation—not a rigid, heavy-handed overreaction that
threatens to
6
undermine free speech, user safety, and American competitiveness in the
AI marketplace.
We urge Congress to consider a more thoughtful approach.
If you have any questions or would like to discuss the issues in this
letter further, please
contact Ari Cohn at ***@techfreedom.org.
Sincerely,
Organizations
American Civil Liberties Union
American Library Association
Americans for Prosperity
Association of Research Libraries
Center for Democracy and Technology
Chamber of Progress
Competitive Enterprise Institute
Computer & Communications Industry Association
Consumer Technology Association
Copia Institute
Electronic Frontier Foundation
Engine
Foundation for Individual Rights and Expression
Internet Infrastructure Coalition
R Street Institute
Software & Information Industry Association
Taxpayers Protection Alliance
TechFreedom
Individuals
Joshua Levine, American Action Forum*
*Affiliation listed for identification purposes only