Feds seek to limit on­line con­tent shield

San Francisco Chronicle - - BUSINESS - By David Mccabe David Mccabe is a New York Times writer.

WASH­ING­TON — The Jus­tice Depart­ment sent Congress draft leg­is­la­tion on Wed­nes­day that would re­duce a le­gal shield for sites like Face­book and Youtube, the lat­est ef­fort by the Trump ad­min­is­tra­tion to re­visit the law as the pres­i­dent claims those com­pa­nies are slanted against con­ser­va­tive voices.

The orig­i­nal law, Sec­tion 230 of the Com­mu­ni­ca­tions De­cency Act, makes it dif­fi­cult to sue such ser­vices over the con­tent they host or the way they mod­er­ate it. Un­der the pro­posed changes, com­pa­nies that pur­posely fa­cil­i­tate “harm­ful crim­i­nal ac­tiv­ity” would not re­ceive the pro­tec­tions, the depart­ment said. Those that al­low “known crim­i­nal con­tent” to stay up once they know it ex­ists would lose the pro­tec­tions for that con­tent.

At­tor­ney Gen­eral Wil­liam Barr, in a state­ment, urged law­mak­ers to “be­gin to hold on­line plat­forms ac­count­able both when they un­law­fully cen­sor speech and when they know­ingly fa­cil­i­tate egre­gious crim­i­nal ac­tiv­ity on­line.”

(While they are shielded from some civil law­suits, on­line ser­vices are not pro­tected from fed­eral crim­i­nal li­a­bil­ity by Sec­tion 230.)

Pres­i­dent Trump and his al­lies have made crit­i­cism of ma­jor on­line ser­vices a reg­u­lar talk­ing point in his cam­paign for re­elec­tion, at­tack­ing the firms over anec­do­tal ex­am­ples of the re­moval of con­ser­va­tive con­tent from the sites. The com­pa­nies have de­nied that po­lit­i­cal bias plays a role in re­mov­ing posts, pho­tos and videos.

On Wed­nes­day, the pres­i­dent met with Repub­li­can state at­tor­neys gen­eral to dis­cuss “so­cial me­dia cen­sor­ship,” ac­cord­ing to the as­so­ci­a­tion that works on be­half of GOP at­tor­neys gen­eral. In May,

Trump is­sued an ex­ec­u­tive or­der meant to push some fed­eral agen­cies to make changes to the law.

“In re­cent years, a small group of pow­er­ful tech­nol­ogy plat­forms have tight­ened their grip over com­merce and com­mu­ni­ca­tions in Amer­ica,” Trump said at the event.

The leg­is­la­tion pro­posed by the Jus­tice Depart­ment, which grew out of rec­om­men­da­tions the agency made this year, seems un­likely to move for­ward in the com­ing months. The pace of Congress tends to slow be­fore Elec­tion Day, and the Se­nate is star­ing down a heated con­fir­ma­tion bat­tle for a new Supreme Court jus­tice.

The draft leg­is­la­tion also in­cludes lan­guage that is meant to limit the cir­cum­stances un­der which com­pa­nies are pro­tected for mod­er­at­ing con­tent, changes that could lead to the ser­vices as­sum­ing le­gal li­a­bil­ity for tak­ing down cer­tain po­lit­i­cal speech.

But there is a grow­ing group of crit­ics who say Sec­tion 230 has al­lowed Sil­i­con Val­ley to get away with tak­ing a dan­ger­ous hands­off ap­proach to so­cial me­dia. Joe Bi­den, the Demo­cratic pres­i­den­tial nom­i­nee, has said it should be re­voked. Law­mak­ers from both par­ties have in­tro­duced mea­sures that would mod­ify the pro­tec­tions, though none have gained real sup­port in Congress.

In 2018, Congress mod­i­fied Sec­tion 230 so that the pro­tec­tions did not cover sites that know­ingly fa­cil­i­tate sex traf­fick­ing. Pro­po­nents of that change say it tamped down traf­fick­ing on­line. But crit­ics say the change made it harder for sex work­ers to safely vet po­ten­tial clients, putting them at greater risk.

On­line ser­vices and their rep­re­sen­ta­tives in Wash­ing­ton say Sec­tion 230 has played a vi­tal role in al­low­ing free speech to flour­ish on­line and has been in­te­gral to Sil­i­con Val­ley’s rapid growth. With­out the pro­tec­tions, they say, it would be im­pos­si­ble to sus­tain the scale of the in­ter­net econ­omy. They also point to Sec­tion 230’s pro­tec­tions for how con­tent is mod­er­ated to ar­gue that the law al­lows them to po­lice their sites.

“This is not about stop­ping crimes; it’s about ad­vanc­ing po­lit­i­cal in­ter­ests,” said Carl Sz­abo, vice pres­i­dent of NetChoice, a trade group that rep­re­sents Google and Face­book. “We’re essen­tially turn­ing over to the courts an in­cred­i­ble amount of power to de­cide what is and is not ap­pro­pri­ate for peo­ple who go on the in­ter­net.”

The con­ser­va­tive at­tacks on Sec­tion 230 stem from com­plaints that sites like Face­book, Youtube and Twit­ter skew against con­ser­va­tive con­tent.

But de­spite the ac­cu­sa­tions of cen­sor­ship on the right, con­ser­va­tive pub­li­ca­tions and fig­ures reg­u­larly dom­i­nate the rank­ings of high­per­form­ing posts on Face­book and have built ded­i­cated fol­low­ings on video sites like Youtube.

In late May, Trump signed an ex­ec­u­tive or­der that asked the Com­merce Depart­ment to pe­ti­tion the Fed­eral Com­mu­ni­ca­tions Com­mis­sion to limit the scope of Sec­tion 230. A cou­ple of months later, the depart­ment sub­mit­ted its pe­ti­tion, ask­ing the FCC to find that a ser­vice is not pro­tected when it mod­er­ates or high­lights user con­tent based on a “rea­son­ably dis­cernible view­point or mes­sage, with­out hav­ing been prompted to, asked to or searched for by the user.”

It is un­clear what the FCC, which is an in­de­pen­dent reg­u­la­tor, will do with the pe­ti­tion.

Anna Money­maker / New York Times

At­tor­ney Gen­eral Wil­liam Barr, at FBI head­quar­ters in Fe­bru­ary, is seek­ing to limit le­gal shields for op­er­a­tors of web­sites.

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