The US Department of Justice has proposed legislation on behalf of the Trump administration to reform the legal immunity provided to internet platforms distributing third-party content. This follows an executive order from President Trump in May calling on regulators to look at ways to make social media companies more responsible for content on their platforms.
The DoJ's proposal centres on amending the Communications Decency Act of 1996 and specifically its Section 230, which covers liability issues. The department said it has conducted a year-long review of the "outdated" statute and called on Congress "to make these necessary reforms to Section 230 and begin to hold online platforms accountable both when they unlawfully censor speech and when they knowingly facilitate criminal activity online".
The legislation will require approval by both houses of Congress. However, they are unlikely to take up the bill before elections in November and the new Congress takes office in January 2021.
The DoJ claims that online platforms have been able to hide behind the immunity provided under the existing law "to censor lawful speech in bad faith", something also inconsistent with the sites' own terms of service. To remedy this, the proposal revises the language of Section 230 and replaces vague terms that may be used to shield arbitrary content moderation decisions with more concrete language that gives greater guidance to platforms, users and courts. This includes more detail on the definition of “information content provider” to clarify which platforms fall under the legal obligations to moderate content.
The other major element of the reform is an attempt to "incentivise" platforms to address the growing amount of illicit content online, while preserving the core of Section 230’s immunity for defamation claims. This means no immunity for platforms that purposely solicit and facilitate harmful criminal activity and limited immunity for sites that don't respond effectively to requests to take down harmful content.
The department also wants to define when the government could take civil action against violators. While criminal prosecution has always been outside the scope of Section 230 immunity, the attorney general would like to pursue civil cases on behalf of the public, for offenses such as child sexual abuse, terrorism and cyberstalking. These amendments "will be critical first steps in enabling victims to seek redress for the most serious of online crimes", the department said.
The proposed legislation was met with criticism from the Internet Association, which said it "would severely limit people’s ability to express themselves and have a safe experience online". It expects the changes could result in many small sites, such as community listservs or religious forums, facing new legal restrictions and requirements, and current good-faith moderation efforts that remove things like misinformation, platform manipulation and cyberbullying would result in lawsuits. "This proposal won’t make Americans safer online and instead will fundamentally limit online services’ ability to create communities for people to express themselves," the association said.
The Computer & Communications Industry Association noted the odd timing of the proposal just ahead of the elections, while Attorney General William Barr was also reported to be meeting with state attorneys general on tougher enforcement of existing law covering social media. "Amid a pandemic and an election, undermining the tools social media companies use to respond to problematic content like disinformation is more dangerous than ever," said CCIA President Matt Scruers in a statement. "The US government should be enabling efforts to address nefarious content and behavior, not hamstringing them in misguided pursuit of political gain."
