DOJ Sends Congress Draft for Amending CDA S. 230

DOJ sent draft legislation to Congress Wednesday that would amend Communications Decency Act Section 230 to make tech platforms more accountable for alleged speech censorship and facilitation of criminal activity. The proposal got backlash from the Internet Association, Computer & Communications Industry Association, NetChoice and Public Knowledge.

Section 230 has allowed platforms to “operate with impunity” for too long, said Attorney General William Barr. He urged Congress to “hold online platforms accountable both when they unlawfully censor speech and when they knowingly facilitate criminal activity online.”

President Donald Trump participated Wednesday in a meeting with Barr and Republican state attorneys general on the topic of “protecting consumers from social media abuses.” The White House expected attendees to have included Sen. Josh Hawley, R-Mo., with AGs from Arkansas, Arizona, Louisiana, Mississippi, Missouri, South Carolina, Texas, Utah and West Virginia. Hawley previously was his state's AG.

DOJ said the draft legislation focuses on two “areas of reform”: promoting transparency and open discourse and addressing illicit activity online. It would clarify 230 and replace “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.” It would add language to the definition of information content provider to “clarify when platforms should be responsible for speech that they affirmatively and substantively contribute to or modify.”

The department would incentivize platforms to “address the growing amount of illicit content online.” This would involve “carving out certain categories of civil claims that are far outside Section 230’s core objective, including offenses involving child sexual abuse, terrorism, and cyberstalking.”

The recommendations would “fundamentally limit online services’ ability to create communities for people to express themselves,” said IA Deputy General Counsel Elizabeth Banker: Small listservs, forums and “anyone else who hosts and moderates online content would face new legal restrictions and requirements on every content decision.” The proposal would make it “trivially easy for someone who is upset by a platform to allege a violation of its terms of service, and ask the government to override the platform's editorial judgments,” said PK Legal Director John Bergmayer. CCIA accused Justice of attempting to undermine social media tools used to address harmful content like disinformation: “The U.S. Government should be enabling efforts to address nefarious content and behavior, not hamstringing them in misguided pursuit of political gain,” said President Matt Schruers.

The revamp would make it “near impossible” to remove election interference, fake reviews and dangerous products, said NetChoice Vice President Carl Szabo: This plan would encourage "family-friendly websites to be more like the anything-goes 8-Chan, making it impossible to adhere to Congressional demands to remove online COVID-19 misinformation and foreign election interference.”