DOJ Fires First Shot at Big Tech

The big showdown between the DOJ and Google, Amazon, Facebook, etc... is still coming. But this is a kind of initial shot. A trial run aimed at Congress. And while Democrats and Republicans in theory make noises about taking on Big Tech, I'm skeptical that it will lead to action.

But the DOJ is leading with Section 230 carve outs that should be no brainers.

The Department of Justice released today a set of reform proposals to update the outdated immunity for online platforms under Section 230 of the Communications Decency Act of 1996.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.”

Barr is leading with basic uncontroversial stuff.

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.

In short, Google, Facebook would have to clear out links to sites that violate federal law, e.g. terrorism, child pornography, and would not be protected by Section 230. 

Democrats who want to vote against this would face some tough questions.

At the end, is prep for the DOJ;s own incoming antitrust action.

A fourth category of reform is to make clear that federal antitrust claims are not, and were never intended to be, covered by Section 230 immunity.  Over time, the avenues for engaging in both online commerce and speech have concentrated in the hands of a few key players.  It makes little sense to enable large online platforms (particularly dominant ones) to invoke Section 230 immunity in antitrust cases, where liability is based on harm to competition, not on third-party speech.

But, in second place, is the thing conservatives actually care about. Good faith.

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.

This will be a deal-killer for Dems who rant about Facebook precisely because it hosts conservative content.

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