DOJ Releases Recommendations For Section 230 Reform

Update (1430ET): As the Senate GOP pushes ahead with its plan to finally rewrite Section 230 of the Communications Decency Act, the DOJ has just officially weighed in, releasing the recommendations - a set of "concrete reform proposals" - that were teased earlier in a series of coordinated media leaks.

The DOJ recommends that Section 230 is flawed due to "vague terminology", which must be replaced. The first category of recommendations, as was teased earlier, is aimed at incentivizing platforms to focus their policing efforts on content that clearly violates community standards (like the Christchurch shooting video). The DoJ recommends that the liability shield be made contingent on the platforms' conforming their policing efforts to a set of guidelines to be set by the legislation.

Another recommended change, made with an eye toward the Trump administration's anti-trust push, would clarify that Section 230 doesn't protect the Silicon Valley giants from anti-trust claims, opening the door to a wide-ranging federal anti-trust case a little wider.

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Justice Department Issues Recommendations for Section 230 Reform

Reforms Strike Balance of Protecting Citizens While Preserving Online Innovation and Free Speech

The Department of Justice released today a set of reform proposals to update the outdated immunity for online platforms under Section 230 of the Communications Decency Act of 1996.  Responding to bipartisan concerns about the scope of 230 immunity, the department 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.  The department’s findings are available here.

"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," said Attorney General William P. Barr.  “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.  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 Department’s proposal aims to realize these objectives more fully and clearly in order for Section 230 to better serve the interests of the American people."

The department's review of Section 230 over the last ten months arose in the context of its broader review of market-leading online platforms and their practices, which were announced in July 2019.  The department held a large public workshop and expert roundtable in February 2020, as well as dozens of listening sessions with industry, thought leaders, and policy makers, to gain a better understanding of the uses and problems surrounding Section 230.

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.

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.  Following the completion of its review, the Department of Justice determined that Section 230 is ripe for reform and identified and developed four categories of wide-ranging recommendations.

Incentivizing Online Platforms to Address Illicit Content

The first category of recommendations 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.  These reforms include a carve-out for bad actors who purposefully facilitate or solicit content that violates federal criminal law or are willfully blind to criminal content on their own services.  Additionally, the department recommends a case-specific carve out where a platform has actual knowledge that content violated federal criminal law and does not act on it within a reasonable time, or where a platform was provided with a court judgment that the content is unlawful, and does not take appropriate action.

Promoting Open Discourse and Greater Transparency

A second category of proposed reforms is intended to clarify the text and revive the original purpose of the statute in order to promote free and open discourse online and encourage greater transparency between platforms and users.  One of these recommended reforms is to provide a statutory definition of “good faith” to clarify its original purpose.  The new statutory definition would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and consistent with public representations.  These measures would encourage platforms to be more transparent and accountable to their users.

Clarifying Federal Government Enforcement Capabilities

The third category of recommendations would increase the ability of the government to protect citizens from unlawful conduct, by making it clear that Section 230 does not apply to civil enforcement actions brought by the federal government.

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Source: the DOJ

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Update (1015ET): Just hours after media reports shined a light on a new DoJ legislative recommendation to hold tech giants accountable for censoring political speech and discriminating against conservatives.

The "Limiting Section 230 Immunity to Good Samaritans Act," will force tech companies like Facebook, Twitter and Alphabet to bind themselves to "good faith" standards of impartiality outlined as follows:

  • Users could sue the major Big Tech companies for breaching their contractual duty of good faith
  • The duty of good faith would contractually prohibit Big Tech from: Discriminating when enforcing the terms of service they write (just like police and prosecutors are not supposed to discriminate when enforcing the law)
  • Failing to honor their promises
  • Big Tech companies who breach their duty of good faith would have to pay $5,000 plus attorney’s fees to each user who prevails.

Notably, Hawley is joined by Marco Rubio, Tom Cotton and Mike Braun. If passed, the bill would allow the Federalist and Zero Hedge to sue Google for unequal treatment.

Other conservatives weighed in, including Meghan McCain.

Finally, during last night's show, Tucker Carlson delivered a scathing indictment of Google, which controls 70% of online advertising. "When you're in the news business, you obey Google...in all of human history, no entity has had more unchecked power over free speech than Google.

If you're worried about the concentration of power in the hands of an elite few, you should be worried about Google, especially when it enjoys Section 230 protections that organizations, like Zero Hedge, do not.

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The DoJ just escalated its burgeoning feud with Silicon Valley by introducing a new legislative plan meant to make certain changes proposed in a Trump executive order signed late last month permanent - including a measure to strip tech giants of "liability shields" for activity and speech that happens on their platforms.

In effect, the DoJ proposal would rollback protections centered in Section 230 of the Communications Decency Act of 1996, something that's gaining bipartisan support (albeit for vastly different reasons).

The proposal calls for the rolling back of legal protections that online platforms have enjoyed for more than 20 years to try and make tech companies more responsible in how they police their content, CNET reports. The proposed reforms, to be announced later on Wednesday, are designed to require social media platforms like Twitter, Facebook or YouTube (owned by Google parent Alphabet) to be more active in policing sites for illicit or harmful content, while also requiring them to be more consistent in decisions to remove content they find objectionable.

If adopted by Congress and passed, the bill would effectively make some of the changes outlined in an executive order signed by Trump late last month the law of the land: It would rollback protections for these digital 'platforms' that engage in active political censorship of users on said platforms.Because of this, it represents a serious escalation of the Trump Administration's fight against Big Tech, which President Trump has long criticized for discriminating against conservatives and their ideas.

The new framework might gain more traction on capital hill, particularly after the events of yesterday, when a journalist-activist employed by NBC News published a story claiming that the "far-right" websites Zero Hedge and the Federalist (two sites that have both been described as about as conservative as the Drudge Report) were recently demonetized by Google. Shortly after, Google clarified that it was working with the two publishers to rein in hate speech in comment sections.

Furthermore, Jonathan Turley, a law professor at GW who often writes on free speech issues, criticized an NBC News report on the "de-monetization" (later denied by Google) of Zero Hedge and the Federalist) and argued that Google's actions support the DOJ legislative proposal and the Trump Administration's incipient anti-trust effort.

As we discussed earlier in regards to Twitter, Google seems to be making the case for not only pushing forward with anti-trust inquiries but stripping it and other companies of immunity protections. Indeed, the Justice Department just announced that it is moving forward with proposals to strip away protections.  Google and other companies were given protections under Section 320 because it has claimed to being a neutral supplier of virtual space for people to speak with one another.  It is now effectively shutting down sites because they allow others to comment freely on their sites.  This biased targeting of sites has led to congressional objections and renewed threats to amend the federal law.  Indeed, Google is undermining the support with some of us who viewed protections are fostering free speech values.  It is now using its role to stifle and regulate speech, the very antithesis of not just free speech but the federal protections.

The White House has made it abundantly clear that it won't tolerate social media platforms continuing to censor and de-monetize conservative speech while ignoring similar behavior by radical leftists. If these platforms want to continue to 'curate' the information and speech found therein, then they should be treated more like a publisher than a platform.