The Justice Department issued a report proposing that the laws governing internet companies should be reformed and some immunities should be rolled back to help incentivize internet businesses to be “responsible actors.”
Attorney General William Barr said Wednesday that Section 230 of the Communications Decency Act of 1996 must be updated after nearly two decades.
“When it comes to issues of public safety, the government is the one who must act on behalf of society at large. Law enforcement cannot delegate our obligations to protect the safety of the American people purely to the judgment of profit-seeking private firms. We must shape the incentives for companies to create a safer environment, which is what Section 230 was originally intended to do,” Barr said. “Taken together, these reforms will ensure that Section 230 immunity incentivizes online platforms to be responsible actors. These reforms are targeted at platforms to make certain they are appropriately addressing illegal and exploitive content while continuing to preserve a vibrant, open, and competitive internet.”
Barr added, “These twin objectives of giving online platforms the freedom to grow and innovate while encouraging them to moderate content responsibly were the core objectives of Section 230 at the outset.”
The Justice Department’s 28-page report, titled Section 230 — Nurturing Innovation or Fostering Unaccountability?, was the culmination of a 10-month review. It comes shortly after President Trump’s late May executive order, which claimed that Twitter, Facebook, Instagram, and YouTube “wield immense, if not unprecedented, power to shape the interpretation of public events” and that “online platforms are engaging in selective censorship that is harming our national discourse.”
The DOJ report said it aimed to “update the outdated immunity for online platforms” under Section 230 and “identified a set of concrete reform proposals to provide stronger incentives for online platforms to address illicit material on their services while continuing to foster innovation and free speech.”
Republican Sen. Josh Hawley of Missouri also introduced a bill on Wednesday to enable U.S. citizens to sue Big Tech companies who act in bad faith by selectively censoring political speech. The bill would forbid Big Tech companies such as Google, Facebook, or Twitter from receiving Section 230 immunity unless they update their terms of service to promise to operate in good faith.
Republicans have increasingly argued that Section 230 needs to be updated in light of claims that social media companies unfairly censor conservative content or ban conservative users.
The two key provisions of Section 230 are that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and “no provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
The Justice Department report said some of its proposed reforms are “intended to clarify the text and original purpose of the statute in order to promote free and open discourse online and encourage greater transparency between platforms and users.” The Justice Department suggested replacing the “vague catch-all” phrase “otherwise objectionable” in Section 230 by replacing it with “unlawful” and “promotes terrorism.” The agency said, “This reform would focus the broad blanket immunity for content moderation decisions on the core objective of Section 230 — to reduce online content harmful to children — while limiting a platform’s ability to remove content arbitrarily or in ways inconsistent with its terms or service simply by deeming it objectionable.”
The Justice Department explained its reasoning in a press release, emphasizing that it was simultaneously looking to encourage the free flow of ideas while discouraging illegal activities.
The American Civil Liberties Union has repeatedly argued against Republican proposals to reform Section 230, saying that “setting aside the obvious constitutional problems with a government entity judging the political content of speech, or dictating the censorship decisions of online platforms, these proposals would make it far less palatable for online services to host others’ speech at all.” The group previously argued that “if enacted, the internet’s marketplace of ideas — and our freedom to communicate online — would suffer.”
But the Justice Department says changes are needed.
“Section 230 was originally enacted to protect developing technology by providing that online platforms were not liable for the third-party content on their services or for their removal of such content in certain circumstances. This immunity was meant to nurture emerging internet businesses and to overrule a judicial precedent that rendered online platforms liable for all third-party content on their services if they restricted some harmful content,” the agency said. “However, the combination of 25 years of drastic technological changes and an expansive statutory interpretation left online platforms unaccountable for a variety of harms flowing from content on their platforms and with virtually unfettered discretion to censor third-party content with little transparency or accountability.”
Other reforms proposed by the Justice Department on Wednesday included “denying Section 230 immunity to truly bad actors” such as child abusers, terrorists, and cyberstalkers, and the reforms would “enable victims to seek civil redress.” The Justice Department said that it “supports reforms to make clear that Section 230 immunity does not apply in a specific case where a platform had actual knowledge or notice that the third party content at issue violated federal criminal law.”
The report said that the law should make clear that “the immunity provided by Section 230 does not apply to civil enforcement by the federal government.” The Justice Department also proposed clarifying that federal antitrust claims “are not covered by Section 230 immunity” because “it makes little sense to enable large online platforms (particularly dominant ones) to invoke Section 230 immunity in antitrust cases.”
Last summer, the Justice Department opened a sweeping antitrust review into online platforms, potentially threatening some of Silicon Valley’s most powerful companies. The tech giants under scrutiny likely include Amazon, Google, Facebook, and others. Democrats such as Sen. Elizabeth Warren of Massachusetts have said both Facebook and Amazon should be split up. Republicans, too, have raised concerns that major online companies have gained too much power.
All 50 state attorneys general and territories banded together last September to launch an antitrust investigation into Google, and the Justice Department is reportedly exploring filing an antitrust lawsuit against Google and possibly other companies.
