DOJ Recommends Rolling Back Legal Immunity For Big Tech, Social Media Over Censorship


Time may soon be running out for Big Tech’s practice of deplatforming, shadowbanning, and censorship.

According to a Wednesday announcement, the Department of Justice has recommended withdrawing the legal immunities enjoyed by companies like Facebook, Twitter, YouTube, and Google under Section 230 of the Communications Decency Act (CDA).

The DOJ statement reads, in part:

The Department of Justice released today a set of reform proposals to update the outdated immunity for online platforms under Section 230 of the Communications Decency Act of 1996.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

Currently, the long-debated Section 230 of the US Code gives Big Tech companies immunity from litigation arising from user-generated content. For example, if a person is defamed by a user on any of the myriad web-based content or social media platforms, those platforms themselves are not legally liable for the content the same way a traditional publisher, such as a newspaper, might be. This policy has allowed such platforms to reap the profits of hosting billions of posts from users, all without the legal risk faced by traditional media.

However, as many legislators have pointed out, Big Tech companies are behaving like traditional publishers with the increasing policing of posts on their platforms, including censoring, editing, and approving user posts. If these companies want to enjoy the legal immunities of Section 230, lawmakers argue, they should maintain a hands-off approach to the speech of their users.

Subsection c-2 of Section 230 also poses problems, granting tech companies immunity from lawsuits arising from their censorship of “objectionable” content. By simply deeming content “objectionable,” Big Tech has a wide berth to censor users, leaving them no legal avenue for remedy, even if their social media accounts are crucial to their career.

According to the Wall Street Journal, the Justice Department’s proposals will go beyond censorship:

The department’s proposal, for instance, would remove legal protections when platforms facilitate or solicit third-party content or activity that violates federal criminal law, such as online scams and trafficking in illicit drugs.  The department also wouldn’t confer immunity to platforms in instances involving online child exploitation and sexual abuse, terrorism or cyberstalking.  Those carve-outs are needed to curtail immunity for internet companies to allow victims to seek redress, the official said.

The Justice Department also will seek to make clear that tech platforms don’t have immunity in civil-enforcement actions brought by the federal government, and can’t use immunity as a defense against antitrust claims that they removed content for anticompetitive reasons.

“When it comes to issues of public safety, the government is the one who must act on behalf of society at large,” said Attorney General William Barr in the announcement. “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,”

“Taken together, these reforms will ensure that Section 230 immunity incentivizes online platforms to be responsible actors,” Barr went on. “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.”

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