Section 230 of the Communications Decency Act of 1996, which the White House is seeking to pare back, helped create today’s internet giants.

By Cecilia Kang | June 17, 2020

WASHINGTON — The Justice Department released recommendations on Wednesday to pare back the legal shield for online platforms that has been crucial to their growth since the earliest days of the internet, taking a direct shot at companies like Facebook, Twitter and YouTube that have come into the cross hairs of the Trump administration.

In a 25-page recommendation, the agency called on lawmakers to repeal parts of a law that has given sites broad immunity from lawsuits for words, images and videos people have posted on their services.

The changes to the law, Section 230 of the Communications Decency Act of 1996, would put the onus on social media and other online platforms to more strongly police harmful content and conduct while also being consistent about their moderation.

The Justice Department proposal, reported earlier by The Wall Street Journal, is a legislative plan that would have to be adopted by Congress. It adds to growing calls in Washington, from elected officials of both parties, to change Section 230.

Last month, President Trump signed an executive order to limit protections for online platforms. Joe Biden, the presumptive Democratic nominee for president, has criticized the law before, too. On Capitol Hill, Republicans have become increasingly critical of Facebook, Google and Twitter for abusing the safe harbor to take down content that employees disagree with, including conservative views.

The size of the largest tech companies, the agency said in its recommendation, “has raised valid questions of whether those large tech companies still require the blanket immunity of Section 230 provided to the nascent internet industry.”

The tech industry criticized the agency’s proposal on Wednesday as a political ploy meant to aid Mr. Trump’s battle against social media firms. Mr. Trump announced his social media executive order after Twitter labeled his tweets last month for violating the company’s rules against voter suppression and the glorification of violence.

Internet companies say they are already liable to some degree for criminal content and a reinterpretation of the 1996 legislation would constrain their ability to moderate harmful and problematic third-party content without fear of more liability.

“This is a coordinated attack by the administration against tech businesses to sidestep the First Amendment,” said Carl Szabo, vice president of the tech lobbying organization NetChoice.

The Justice Department recommendation is part of a sweeping review of big tech announced last July by Attorney General William P. Barr. As part of that review, the agency is expected to bring an antitrust monopolization case against Google in the coming months.

The proposal is based on a 10-month investigation into online platforms and their record on monitoring and ridding sites of harmful content, including child exploitation and pornography. Earlier this year, Mr. Barr also instructed his staff to review Section 230, which was created to help encourage the growth of internet start-ups. In February, Mr. Barr held a daylong workshop focused on how to revise the law.

“A driving motivation behind our broader perspective, including Section 230, is the need for the department’s enforcement efforts to keep up with rapidly changing technological landscape around us,” Mr. Barr said at the February event. “No longer are tech companies the underdog upstarts; they have become titans of U.S. industry.”

The law generally shields websites from legal action for images, text and videos posted by users. The law also gives the website broad immunity for taking down that material.

The agency’s proposal, if passed by Congress, would open the door to civil lawsuits for posts with illegal and harmful content. It explicitly calls for an end to immunity on the most egregious content online, such as child exploitation and abuse, terrorist content and cyberstalking.

The agency’s proposal would also put greater scrutiny on the moderation of content, the focus of Mr. Trump’s complaints. He and other Republicans have accused Twitter, Google and Facebook of suppressing and removing the materials of conservative public figures and media outlets. The agency proposes to strike language in the law that allows platforms to take down a broad array of “otherwise objectionable” content.

The Justice Department said in its recommendation that technology has become essential to society and that several online platforms have become the nation’s biggest and most valuable companies. It proposed reforms that would bar the biggest tech platforms from using Section 230 speech protections in its defense in antitrust cases.

Their use of sophisticated algorithms for targeting and connecting users and a broad interpretation of the law by courts have “reduced the incentives of online platforms to address illicit activity on their services and, at the same time, left them free to moderate lawful content without transparency or accountability,” the agency said in its report.

Cecilia Kang covers technology and regulatory policy out of Washington. She joined The Times in 2015 after 10 years covering technology and business at The Washington Post. @ceciliakang




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