DOJ unveils Trump administration’s legislation to reform tech’s legal liability shield

Attorney General William Barr appears before the House Oversight Committee on Capitol Hill, in Washington, U.S., July 28, 2020.
Matt McClain | Reuters

The Department of Justice proposed legislation Wednesday to reform a key legal liability shield for the tech industry known as Section 230.

The draft legislation focuses on two areas of reform. First, it aims to narrow the criteria online platforms must meet to earn the liability protections granted by Section 230. Second, it would carve out the statute’s immunity for certain cases, like offenses involving child sexual abuse.

Section 230 of the Communications Decency Act protects online platforms from liability for their users’ posts, but it also allows them to moderate and remove harmful content without being penalized.

The statute’s protections helped tech platforms grow from the early days of the internet but have come under scrutiny in recent years as lawmakers and regulators more broadly question the tech industry’s power. 

Several lawmakers have proposed reforms to Section 230 in recent months, and President Donald Trump signed an executive order in May targeting the law, claiming to crack down on alleged “censorship” by tech platforms. Trump introduced the order shortly after Twitter slapped fact-check labels on his tweets for the first time.

Representatives from Twitter, Google and Facebook were not immediately available to comment about the DOJ’s proposal, which would need to be passed by Congress.

The Justice Department has been looking at Section 230 for the better part of a year. Attorney General William Barr said at a conference in December 2019 that the department was “thinking critically” about Section 230. Two months later, it hosted experts to debate the merits of the law and discuss how it could be reformed.

The DOJ’s proposed reforms echo some legislation that has already been introduced by lawmakers. For example, it narrows the standard that tech companies must follow in order to remove content that is considered “obscene, lewd, lascivious, filthy, excessively violent,” from a subjective one to that of an “objectively reasonable belief.” A bill introduced by three powerful Republicans earlier this month includes the same standard and similarly narrows the types of content that platforms could be protected for removing, like content promoting self-harm or terrorism.

The proposal also includes a “Bad Samaritan” carve-out that would explicitly deny immunity to platforms that purposefully fail to take action on content that violates federal criminal law. Under the proposal, platforms could be held liable if they fail to quickly remove or suppress posts that would violate federal criminal law or fail to report illegal material to law enforcement when required. The language is similar to a proposal from Sens. Richard Blumenthal, D-Conn., and Lindsey Graham, R-S.C., that aims to tie the liability protection for tech platforms to action to crack down on child exploitation material. A version of their EARN It Act passed in the Judiciary Committee in July.

In 2018, a set of laws known as FOSTA-SESTA carved out Section 230 immunity for platforms hosting posts advertising sex work. The bills ignited an ongoing debate about how to effectively reform the legal shield as sex worker advocates have argued the reforms made their work less safe.

The DOJ’s proposal specifically states that nothing in the statute should prevent enforcement under other types of laws, including antitrust laws. Amazon, Apple, Facebook and Google have all faced antitrust scrutiny from lawmakers and enforcers. Outlets including The New York Times have reported that the DOJ is preparing an antitrust case against Google that could come as soon as this month.

The Trump administration is expected to encourage a group of Republican state attorneys general at a meeting Wednesday to investigate social media companies over claims that they censor conservative voices, according to The Washington Post. CNBC confirmed that eight state AGs are expected to attend the White House meeting: Arizona, Mississippi, Louisiana, Texas, Utah, Arkansas, Missouri and South Carolina.

“Online censorship goes far beyond the issue of free speech, it’s also one of protecting consumers and ensuring they are informed of their rights and resources to fight back under the law,” White House spokesperson Judd Deere said in a statement Tuesday. “State attorneys general are on the front lines of this issue and President Trump wants to hear their perspectives.”

–CNBC’s Ylan Mui contributed to this report.

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