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