Sen. Lee: Internet Companies That Don’t Act as Open Platforms Might Lose Section 230 Immunity

Sen. Lee: Internet Companies That Don’t Act as Open Platforms Might Lose Section 230 Immunity
Sen. Mike Lee (R-Utah) at the CPAC convention in National Harbor, Md., on Feb. 28, 2019. (Charlotte Cuthbertson/The Epoch Times)
Janita Kan

Internet companies might start seeing their liability protections under federal law rolled back if they behave as publishers or editors, Sen. Mike Lee (R-Utah) said in a recent interview.

Lee made the remark during an interview with Fox News @ Night on Oct. 20, when commenting about Twitter’s suppression and censorship of two exposés by The New York Post that contain allegations about Hunter Biden, the son of Democratic presidential nominee Joe Biden.

The articles alleged that emails from an abandoned laptop reportedly dropped off by Hunter Biden at a repair shop reveal he profited from work in China and Ukraine while his father was vice president. Over the weekend, the elder Biden called the articles a “smear campaign.”

Lee said that while internet companies could be held accountable for making in-kind campaign contributions, “the lowest-hanging fruit here might well have to do with their Section 230 immunity,” he said.

Section 230 of the 1996 Communications Decency Act largely exempts 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 allows companies to block or screen content “in good faith” if they consider it “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The protections, however, weren’t intended to apply to services that act more like publishers than online platforms, Attorney General William Barr said in a speech in May.

“They’re acting and they’re behaving, not as an open platform here, but more as an editor, more as a publisher, and they ought not be entitled to that kind of immunity, if, in fact, they are deciding what they publish, rather than providing an open platform for such things,” Lee said of the internet companies.

He added that although platforms ultimately decide what they do on their sites, it is Congress’s “prerogative to decide whether or not they’re publishers, or whether they are, alternatively, an open platform entitled to 230 immunity.”

Last month, the Justice Department (DOJ) submitted a proposal to Congress that seeks to curtail Section 230 for internet companies to force them to manage and moderate content on their platforms responsibly and fairly.

Barr has been critical of the censorship carried out by internet companies such as Twitter and Facebook against certain viewpoints.

“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,” Barr said in a letter to the Senate.

He 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.”
Section 230 has gained attention 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.