DOJ Proposes Legislation Seeking to Roll Back Legal Protections for Tech Companies

September 23, 2020 Updated: September 23, 2020

The Justice Department (DOJ) has submitted a proposal to Congress on Wednesday that seeks to curtail liability protections for internet companies to force them to manage and moderate content on their platforms responsibly and fairly.

The proposal calls on Congress to update Section 230 of the 1996 Communications Decency Act, which largely provides immunity for online platforms from liability for content posted by their users, although they can be held liable for content that violates anti-sex trafficking or intellectual property laws.

The law currently allows companies to block or screen content “in good faith” if they consider it “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” But in recent years, the legal protections afforded have been used to shield online platforms that engage in “censoring” or “political conduct,” the Trump administration has asserted.

“They no longer function as simple forums for posting third-party content, but use sophisticated algorithms to suggest and promote content and connect users. Platforms can use this power for good to promote free speech and the exchange of ideas, or platforms can abuse this power by censoring lawful speech and promoting certain ideas over others,” Attorney General William Barr said in a letter to the Senate (pdf).

The attorney general also added that courts have also played a part in expanding the scope of the immunity for internet companies by interpreting Section 230 broadly. The immunity, Barr said, reaches far beyond speech torts such as defamation and has been known to be invoked in cases where the online platform knew their services were being used for criminal activity, for example.

“For too long Section 230 has provided a shield for online platforms to operate with impunity,” Barr said in a statement. “Ensuring that the internet is a safe, but also vibrant, open, and competitive environment is vitally important to America.”

The DOJ says the proposals aim to achieve two goals: to prevent the censorship of lawful speech in bad faith by requiring online platforms to moderate content fairly and consistent with their own terms of service and to encourage platforms to address illicit content.

Some of the proposals include replacing vague terms such as “otherwise objectionable” with more specific language “promoting terrorism, promoting violent extremism, promoting self-harm, and unlawful” in order to prevent broad interpretations of the law.

The department also proposed a number of exclusions to the immunity including platforms that promote, facilitate, or solicit content that would violate federal criminal law, have actual knowledge that specific content it is hosting violates federal law, and fails to remove such content after receiving a court order.

The legislative proposals also limit immunity to online platforms who do not abide by its own terms of service and public representations by failing to consistently apply their terms of service.

The tech industry has been resisting efforts to revamp or repeal Section 230, saying that the DOJ proposals could limit people’s ability to express themselves and feel open online.

“Small community listservs, religious forums, and anyone else who hosts and moderates online content would face new legal restrictions and requirements on every content decision. Current good-faith moderation efforts that remove things like misinformation, platform manipulation, and cyberbullying would all result in lawsuits under this proposal. Even commenting on another individual’s post could open an online forum or individual to a flood of litigation. This proposal won’t make Americans safer online and instead will fundamentally limit online services’ ability to create communities for people to express themselves,” the Internet Association Deputy General Counsel Elizabeth Banker said in a statement. The Internet Association is a lobbying group that represents internet companies.

Section 230 has been put under the spotlight in recent years after lawmakers on both sides of the aisles raised concerns over the way internet companies handle disinformation and hate speech. Several lawmakers have made various proposals to amend the law, including Sens. Marco Rubio (R-Fla.) and Josh Hawley (R-Mo.), whose Limiting Section 230 Immunity to Good Samaritans Act aims to hold internet companies accountable for censoring political speech and hiding content created by competitors.

President Donald Trump signed an executive order on May 28 directing federal agencies to develop regulations that protect users from unfair or deceptive content restriction practices employed by online platforms.

Trump met with a number of state attorneys general on Wednesday to discuss concerns about censorship and cancel culture on online platforms. The Trump administration and state top law enforcement officers discussed ways states could combat deceptive and misleading online practices.

“Every year, countless Americans are banned, blacklisted, and silenced through arbitrary or malicious enforcement of ever-shifting rules,” Trump said during the roundtable. “Some platforms exploit their power, acquire vast sums of personal data without consent, or rig their terms of service to coerce, mislead, or defraud. And we’ve seen it so many times.”

Article updated with President Donald Trump’s remarks from meeting with state attorneys general.

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