DOJ proposes crackdown on tech industry's legal shield

crackdown tech industry

DOJ proposes crackdown on tech industry's legal shield

The proposal unveiled Wednesday would pare back some of the protections that digital companies have enjoyed under Section 230 of the Communications Decency Act.

William Barr

DOJ's proposal, which would need Congress' blessing, would address a wide range of criticisms of the protections that digital companies have enjoyed under Section 230 of the Communications Decency Act, a 1996 law that has been critical to the online industry's wealth and power.

Among the changes: Sites or platforms that facilitate third-party content that violates federal law would no longer be able to claim immunity from lawsuits. Users could sue companies in cases that involve child sexual abuse, terrorism and cyberstalking. It also would be easier for users to sue over platforms' decisions to take down their content, a change intended to push companies to be more fair in removing content they find objectionable.

The Justice Department also proposed changes to clarify that companies can’t use Section 230 to get out of civil suits by the federal government, or antitrust suits.

Dozens of lawmakers of both parties have expressed concerns about the broad protections given to internet firms under Section 230, though they disagree what aspects are problematic and how it should be fixed.

The Clinton-era legal shield has been heralded as the law that helped build the internet, but Attorney General Bill Barr and others have raised questions about the scope of the law and whether tech companies have used Section 230 to absolve themselves of responsibility for policing their platforms. Trump and his presumptive Democratic rival, former Vice President Joe Biden, have both called for Congress to repeal Section 230 entirely — though for much different reasons.

In February, the Justice Department held a workshop on Section 230 where prominent critics of the law outlined how companies have avoided liability for posts that allegedly aided terrorism, sex trafficking and revenge porn.

Last month, Trump signed an executive order targeting social media companies that he accuses of censoring conservative viewpoints. The order came after Twitter posted fact-checks on his tweets. An industry-funded tech nonprofit has challenged the order’s constitutionality.

The proposal unveiled Wednesday is intended both as a follow-up to the February workshop and a response to Trump’s executive order. DOJ has submitted a proposed bill to the Office of Management and Budget, which will consult with other Trump administration agencies before sending the legislation to Congress, a senior DOJ official said.

The Wall Street Journal initially reported Wednesday that the DOJ was offering the legislative proposal.

Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.) in March unveiled their own legislation that would remove digital firms' legal immunity over users’ posts if they fail to prove they are doing enough to curtail sexual exploitation of children online.

Senate Judiciary Committee member Marsha Blackburn (R-Tenn.), a frequent critic of the tech industry over alleged anti-conservative bias, said the panel should work with the Justice Department to update the law.

"No longer will we let Big Tech hide behind these liability protections as a pretense to bully competitors or to suppress free speech,” Blackburn said in a statement.

But Blumenthal, one of the most outspoken critics of the online industry's liability shield, expressed concerns over the DOJ proposal — a signal it may be dead on arrival among congressional Democrats.

In an interview with POLITICO, he called DOJ's update a "way overbroad, meat-ax effort to suppress free speech."

"Any efforts to narrow the scope of Section 230 have to be carefully crafted and targeted to address big tech’s egregious failures," he said. "General prohibitions on speech and free expression have to be avoided.”


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