DOJ proposes congressional fix of Section 230 as Trump turns up heat on Big Tech

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President Donald Trump signs an executive order to regulate social media, which could lead to attempts to punish companies, such as Twitter and Google, for attempting to point out factual inconsistencies in social media posts by politicians. 

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The Department of Justice proposed legislation Wednesday that would weaken legal liability protections for social media companies, like Facebook and Twitter, and hold them accountable for how they moderate content on their platforms. The news comes as the Trump administration turns up the heat on big tech companies as the 2020 US presidential race gets into full swing. 

Specifically, the new law if passed by Congress and signed by the president, would alter the criteria online platforms must meet to benefit from liability protections granted by Section 230 of the Communications Decency Act. 

“For too long Section 230 has provided a shield for online platforms to operate with impunity,” Attorney General William Barr said in a statement. “Ensuring that the internet is a safe, but also vibrant, open and competitive environment is vitally important to America.”

Tech companies say the Section 230 protections, which shield them from liability for their users’ posts and also let them moderate and remove harmful content without facing repercussions, allowed online platforms to flourish in the early days of the internet. 

But as the influence and size of companies like Twitter and Facebook have grown, lawmakers on both sides of the political aisle have questioned whether more regulation is needed to rein in their power. Democrats are troubled by the rampant flow of hate speech and of disinformation, including interference by foreign countries in the 2020 US presidential election. Republicans, led by Trump, allege their speech is being censored by Twitter, Facebook and other social media sites. There’s no evidence the allegation is true, and the companies strongly deny the claim.

In May, Trump signed an executive order asking the Federal Communications Commission, which has never regulated online content companies, to do so. The executive order followed Twitter’s decision to slap labels on two Trump tweets about mail-in voting, saying they contained “potentially misleading information.” 

Here’s what you need to know about the government’s potential role in regulating social media. 

You mentioned Section 230. What is Section 230? 

Section 230 is a provision of the Communications Decency Act, which was passed in 1996. A number of tech industry observers say it’s the most important law protecting free speech online. 

The provision essentially protects companies that host user-created content from lawsuits over posts on their services. The law shields not only internet service providers, like AT&T, Comcast and Verizon, but also social media platforms, like Facebook, Twitter and Google. 

Section 230 isn’t blanket protection. There are exceptions for federal crimes or intellectual-property claims. A company could still be held accountable if it knowingly allowed users to post illegal content.

The law provides social media companies with sweeping protections that let them choose how they restrict content and what content they restrict. This means social media platforms can’t be sued for taking down content or leaving it up. 

Why did lawmakers think this was a good idea?

By eliminating liability risk, Section 230 has allowed companies to experiment. Without it, Twitter and Facebook almost assuredly wouldn’t exist, at least not as they do now. And it isn’t just big companies that gain from the law. Nonprofits have benefited too. 

“Without Section 230, we’d have no Wikipedia,” said Ernesto Falcon, senior legislative counsel for the Electronic Frontier Foundation, referring to the volunteer-maintained online encyclopedia.

Many experts say the law has enabled the internet to develop into a medium that allows ideas and political discourse to flow freely. Section 230 allowed online communities to experiment with content moderation, Falcon said. Without these protections, companies might not bother with moderation, he says, which would likely lead to even more offensive, false or misleading content online. (We know that’s hard to believe!)

OK. I get it. Section 230 has helped the internet grow. But it has to have some problems, right? 

Yes, and some politicians are calling for it to be repealed or altered. Democrats are most concerned about getting big social media companies to take down hate speech, harassment, disinformation and terrorism-related content. Republicans allege the social media companies are censoring conservative viewpoints. 

Former Vice President Joe Biden, the presidential nominee for the Democrats, argued in January that social media companies don’t deserve protection because they knowingly allow false information on their platforms. 

In an interview with The New York Times editorial board, Biden called for Section 230 to be “immediately” revoked. “It is propagating falsehoods they know to be false,” Biden said, “and we should be setting standards not unlike the Europeans are doing relative to privacy.”

Meanwhile Republicans, like Sens. Josh Hawley of Missouri and Ted Cruz of Texas, as well as Rep. Paul Gosar of Arizona, have called for changes to the law. They allege that social media companies have been working to silence conservative voices. There’s no evidence the allegation is true, and the companies deny it.  

What does the proposed legislation ask Congress to do?

The draft legislation follows recommendations the Justice Department put forth in June, following a yearlong review of the statute, the agency said in a press release. 

It focuses on two areas. The first includes 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 DOJ contends that the current implementation of Section 230 enables online platforms “to hide behind the immunity to censor lawful speech in bad faith.” 

The Justice Department proposes clarifying language in Section 230 and replacing vague terms to better guide platforms, users and the courts. 

The second thing the draft legislation does is incentivize social media platforms to crack down on illicit content online. The Justice Department said “platforms that purposely solicit and facilitate harmful criminal activity … 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.”

And it provides more clarity on civil enforcement for Section 230.  

What about Trump’s executive order? What’s it ask the FCC to do? 

At the heart of Trump’s executive order is the claim that social media sites censor conservative viewpoints they disagree with. Trump wants the FCC to establish regulations that clarify the parameters of the good faith effort that Section 230 requires online companies must make when deciding whether to delete or modify content. 

Section 230 protects social media platforms and others online from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” This would include deleting posts or putting a label on a post noting that it may be false, even if the post would be protected by the First Amendment against government censorship.

Does the FCC have any authority to make rules limiting Section 230?

Any role in policing social media would be awkward for the FCC, which has cast itself as anti-regulation under Ajit Pai, its Trump-appointed chairman. It’s unclear if the FCC even has the authority to make calls about whether social media companies play fair. 

Most experts say the FCC would likely be challenged in court if the agency were to impose any rules around Section 230. The law contains no language giving the FCC or other federal agency the authority to make rules that limit what an online company can do. It only addresses questions of who can be sued and on what grounds. So any FCC action would likely be challenged on the grounds the agency was overstepping its authority.

Can the president direct the FCC to take action or make new rules?

No. The FCC is an independent federal agency. Even though commissioners at the agency are appointed by the president, the FCC doesn’t take directives from the executive branch. Instead, it gets its authority from Congress. That means the only way the FCC would be able to make rules limiting or clarifying Section 230 would be for Congress to pass a law giving it that authority. 

The president’s executive order takes this into consideration. It’s worded carefully to direct the Commerce Department to ask the FCC to consider a petition asking it to make new rules. 

The FCC opened up comment on the Commerce Department’s proposal in August. 

Is the FCC likely to approve the proposal?

It’s unclear if the Republican-led FCC will vote in favor of the proposal. Three of the five commissioners would have to vote to support it. The two Democrats on the FCC oppose it. Only one Republican commissioner, Brendan Carr, has expressed support. 

In August, Trump pulled the renomination of Republican Michael O’Rielly, who had previously been nominated for a third term by Trump, after O’Rielly publicly expressed concern that the order could empower the FCC to further regulate content on social media platforms. 

“As a conservative, I’m troubled voices are stifled by liberal tech leaders,” O’Rielly tweeted in May. “At same time, I’m extremely dedicated to First Amendment which governs much here.”

Last week, Trump announced his intent to nominate Nathan Simington, who currently serves as a senior adviser in the National Telecommunications and Information Administration, as O’Reilly’s replacement. Simington played a significant role in drafting the petition the FCC is considering. 

Doesn’t the FCC have authority to make sure that content on TV or radio is fair and balanced? Why can’t it do that for the online world?

Actually, the FCC hasn’t had a so-called Fairness Doctrine, which required broadcast license holders to present opposing perspectives of controversial or political issues, since 1987. But even if it did have such a policy for TV and radio, the agency wouldn’t be able to apply the same rules to social media companies, because it has no authority to regulate those companies. 

In fact, the current FCC, under the Trump administration, explicitly cited Section 230, which states Congress’ intent to keep the internet unregulated, as an argument for repealing the Obama-era net neutrality rules that imposed regulations on broadband providers. 

It would be very difficult for Pai and the other Republicans on the FCC to argue that the agency should regulate social media companies, when they stripped the agency of its authority to regulate broadband companies like Comcast or Verizon, says Gigi Sohn, a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy. 

If it’s such a long shot that the FCC will even make rules, what’s the point of the executive order?

Sohn argues that Trump’s executive order isn’t about getting the FCC to do anything. It’s about intimidation. She says it’s working. Facebook hasn’t flagged any of Trump’s posts for accuracy, and Facebook CEO Mark Zuckerberg has told media outlets that the social media giant doesn’t want to be “an arbiter of truth” so it plans to steer clear of the issue. 

“It’s not about winning a legal argument on who has the authority to regulate these companies,” Sohn said. “It’s about playing the ref, so Trump can have his way with social media platforms five months before the election.”

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