On Section 230, Delrahim Cites Barr Questioning Modern Tech Application

DOJ Assistant Attorney General Makan Delrahim drew attention Monday to Attorney General William Barr’s recent questioning whether the tech industry’s content liability immunity is working as intended. Speaking at the Hudson Institute, Delrahim referenced Barr’s comments questioning application of Section 230 of the Communications Decency Act (see 1912110063).

Delrahim noted Barr cited Force v. Facebook, in which the 2nd U.S. Circuit Court of Appeals ruled “Facebook was immune under Section 230 for allegedly matching and facilitating communications between members of the terrorist group Hamas.” Delrahim said Barr also cited Chief Judge Robert Katzmann’s dissent “criticizing the virtually limitless scope of Section 230 immunity imposed by some courts.” Barr noted that section was intended to protect “good Samaritan” platforms moderating content. “I’ll leave it to folks to read and decide for themselves,” Delrahim said.

Various senators, including Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told us last week they support DOJ examining 230. “It always makes sense to look at statutes,” said Sen. Richard Blumenthal, D-Conn. Graham said he and Blumenthal aim to have a draft bill released by year-end targeting related child manipulation legislation (see 1910210067). Delrahim noted Congress altered a small aspect of Section 230 with anti-sex trafficking legislation (see 1910150058).

Content moderation issues remain, said Sen. Marsha Blackburn, R-Tenn. She appreciates what the portion means for startups, but pedophiles are exploiting some of these apps. It’s worth a review because tech platforms aren’t “policing enough,” she said. These public squares need a cop on the beat to institute best practices, or Congress will “gladly do it for them,” she said.

There’s concern companies aren’t fulfilling their duties, House Homeland Security Committee Chairman Bennie Thompson, D-Miss., told reporters. “There needs to be fiduciary duty for [platforms like Facebook] policing their content.” Legislation from Rep. Max Rose, D-N.Y., for a program in which experts flag terrorist content for social media companies is intended to make these companies more engaged, Thompson said.

Delrahim says Justice views privacy as an aspect of competition. “If you don’t have competition, and there’s a revealed preference in consumers that they would like to have this product with more privacy, but there’s no ability for a new entrant to come in and provide a product that respects privacy, then that is an antitrust concern,” he said. Not providing certain privacy protections, in and of itself, isn’t an antitrust violation, he said.

The department has heard from incumbents antitrust laws aren’t keeping pace with technology, Delrahim said. It's examining data concentration and non-price effects, and he believes the current antitrust laws are equipped to handle modern issues. That doesn’t mean DOJ isn’t open to updating statutes at Congress’ direction, he said.

The agency looks at quality, innovation, investment and other consumer welfare standard factors. “I have some hope,” Delrahim said. “That doesn’t mean we wouldn’t be open to some legislative changes, should they be proposed and make sense consistent with economic understanding.”

To address other modern issues that have no antitrust application would be “misguided” and would lead DOJ to an area that the agency has been fighting to get out of, Delrahim said. The incentive to grow market share appropriately should be there, he said. Gaining it or maintaining in anticompetitive ways is something enforcers should be concerned about, he added.