DOJ Announces Reforms To Big Tech’s Sec. 230 Liability Shield

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Hopes To Promote Transparency & Open Discourse

The Department of Justice (DOJ) announced today that on behalf of the Trump Administration, the Department of Justice had sent draft legislation to Congress to reform Section 230 of the Communications Decency Act.   This comes in response to increasing reports of censorship and de-platforming of many independent and conservative bloggers, journalists, and news outlets on a variety of social media outlets.

Attorney General William Barr said: “For too long Section 230 has provided a shield for online platforms to operate with impunity.” “Ensuring that the internet is a safe, but also vibrant, open and competitive environment is vitally important to America.  We therefore urge Congress to make these necessary reforms to Section 230 and begin to hold online platforms accountable both when they unlawfully censor speech and when they knowingly facilitate criminal activity online.

DOJ said the two most important aims of this proposed legislation are – “promoting transparency and open discourse” and “addressing illicit activity online.” One additional aim of the proposal is to promote competition.

Promoting Transparency & Open Discourse

First, the draft legislation has a series of reforms to promote transparency and open discourse and ensure that platforms are fairer to the public when removing lawful speech from their services.

The current interpretations of Section 230 have enabled online platforms to hide behind the immunity to censor lawful speech in bad faith and is inconsistent with their own terms of service.  To remedy this, the department’s legislative proposal revises and clarifies the existing language of Section 230 and replaces vague terms that may be used to shield arbitrary content moderation decisions with more concrete language that gives greater guidance to platforms, users, and courts. 

The legislative proposal also adds language to the definition of “information content provider” to clarify when platforms should be responsible for speech that they affirmatively and substantively contribute to or modify.

Department of Justice

Addressing Illicit Activity Online

The second category of amendments is aimed at incentivizing platforms to address the growing amount of illicit content online, while preserving the core of Section 230’s immunity for defamation claims. 

Section 230 immunity is meant to incentivize and protect online Good Samaritans.  Platforms that purposely solicit and facilitate harmful criminal activity — in effect, online Bad Samaritans — should not receive the benefit of this immunity.  Nor should a platform receive blanket immunity for continuing to host known criminal content on its services, despite repeated pleas from victims to take action. 

The department also proposes to more clearly carve out federal civil enforcement actions from Section 230.  Although federal criminal prosecutions have always been outside the scope of Section 230 immunity, online crime is a serious and growing problem, and there is no justification for blocking the federal government from civil enforcement on behalf of American citizens.

Finally, the department proposes carving out certain categories of civil claims that are far outside Section 230’s core objective, including offenses involving child sexual abuse, terrorism, and cyberstalking.  These amendments, working together, will be critical first steps in enabling victims to seek redress for the most serious of online crimes.

Department of Justice

The details of DOJ’s proposal can be found here. DOJ notes on its website that they held a roundtable on the issue of making reforms to Section 230 on February 19, 2020, and that they have also solicited input from across the industry.

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