DOJ proposes tech liability shield reform to Congress

The Department of Justice (DOJ) on Wednesday rolled out a proposal for Congress to revise the law that gives tech companies a legal liability shield for content posted by third parties.

Section 230 of the Communications Decency Act — which also gives platforms the ability to do good-faith content moderation — has increasingly come under fire from Republicans, who baselessly claim it allows the censoring of conservative viewpoints.

The proposal from the DOJ would amend the law to remove legal immunity from platforms that facilitate or fail to report criminal activity.

It would also remove protections from companies that do not follow their own content-moderation policies, a proposal also made in Republican-led Section 230 bills.

The DOJ’s proposal would also open up platforms to civil lawsuits over content that promotes terrorism or online child sexual abuse material.

“For too long Section 230 has provided a shield for online platforms to operate with impunity,” Attorney General William Barr said in a statement. “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.”

The DOJ request for a legislative change adds to a pile of Section 230 reform proposals.

President Trump in May signed an executive order targeting the law, which is considered foundational to the modern internet.

The president’s order, among other things, directs a Commerce Department subagency to file a petition with the Federal Communications Commission (FCC) to clarify the scope of Section 230.

That subagency, the National Telecommunications and Information Administration, filed that petition earlier this year and recently closed the open comment period.

The FCC now has a choice over whether to consider the petition.

The executive order was signed just days after Twitter first appended a fact-checking label to one of Trump’s tweets, which falsely claimed mail-in voting would lead to a rigged election.

Trump is also set to meet Wednesday with a group of Republican state attorneys general about revising Section 230.

The DOJ’s proposal has been roundly criticized by industry organizations and groups critical of tech alike.

The Internet Association, which represents most leading internet companies including Facebook, Twitter and Google, said the changes to Section 230 “would severely limit people’s ability to express themselves and have a safe experience online.”

“Current good-faith moderation efforts that remove things like misinformation, platform manipulation, and cyberbullying would all result in lawsuits under this proposal,” the group’s general counsel Elizabeth Banker continued in a statement. “Even commenting on another individual’s post could open an online forum or individual to a flood of litigation.”

Tech trade group NetChoice pointed to the DOJ’s proposal to strike the “otherwise objectionable” wording from the part of Section 230 that lets platforms do content moderation and replace it with promoting terrorism or violent extremism, promoting self-harm and unlawful.

Carl Szabo, the group’s vice president and general counsel, warned that limiting the ground for content removal could hamper platforms’ efforts to limit foreign intervention in American elections.

“These amendments would make it near impossible to remove election interference from foreign states like Russia or China, denigration of America’s veterans, fake reviews, and dangerous products —all things we need to be worried about as consumers and as voters during this tense election cycle,” he said.

The American Economic Liberties Project, a major force behind the push to enforce antitrust laws on big tech companies, said it would do little to address real concerns with Section 230.

“Section 230 means monopolies like Amazon, Facebook, and Google can operate as ‘absentee owners,’ supercharging dangerous content across the internet and exploiting a legal framework that protects them from responsibility for how they make money,” executive director Sarah Miller said.

“Fixing this problem means reevaluating which companies receive Section 230 protections. If a company or website generates revenue by selling behavioral advertising, travel services, data collection, enabling commercial transactions, or otherwise monetizing the transmission of content, Section 230 should not necessarily apply.”

Even setting aside the strong opposition from groups across the tech space, the proposal faces an uphill battle.

While some Democrats have thrown their weight behind other reform proposals, they have been critical of the Department of Justice’s previous suggestions on Section 230.

Updated at 1:54 p.m.