The changes, unveiled Wednesday, are designed to encourage online platforms to be fairer and more consistent in their decisions to take down content they find objectionable while being more aggressive in addressing illicit and harmful conduct on their sites.
The move represents an escalation in the ongoing row between the White House and big tech firms, such as Twitter, Google and Facebook.
Section 230 of the CDA states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
This means that the companies operating online platforms are protected against a range of laws that would otherwise hold them legally responsible for what others may say or do on their platforms.
The measure has allowed platforms to host the content of third party creators. This includes videos on YouTube, reviews on Yelp and social media posts on sites such as Facebook and Twitter. Given how large many of these platforms have become, it would be unrealistic for them to vet every single thing that was uploaded to prevent objectionable content from cropping up on their sites.
Section 230 has allowed for the kind of innovation that has allowed the internet to become what it is today. It’s also made the U.S. a leader in hosting content as the protections it brings makes encourages companies to host their content in the country.
However, big tech companies have also used it as a shield for when they have tried to regulate speech on their platforms. This has allowed them to effectively censor content, such as when Twitter put a “fact-check” warning on tweets from President Donald Trump.
Actions like the latter have become a point of contention for many lawmakers who have pointed out that, by doing so, these companies are now acting like the publishers. (Related: Google insiders warn “outright censorship” of the internet is Google’s top priority... and everyone has been intimidated into silence.)
The changes proposed by the Justice Department would limit the ability of these companies to unfairly curb users’ speech. They address the type of speech concerns raised by Trump.
However, the changes also extend much more broadly and seek to strip civil immunity afforded to these companies in a range of circumstances if they’re found to be complicit in unlawful behavior taking place on their platforms. For example, legal protections would be removed should a platform facilitate or solicit third-party content or activity that violates federal criminal law, such as trafficking in illicit or counterfeit drugs.
The companies would also lose immunity if they show a reckless disregard for how users are behaving on their sites.
In addition, the Justice Department also wants to make it clear that tech companies don’t have immunity in civil-enforcement actions brought about by the federal government. They would also lose the ability to use immunity as a defense in antitrust claims stemming from any content they removed for anticompetitive reasons.
Despite these changes, the proposal will not strip the companies of their immunity for censoring “objectionable” content, only spurring them to do so in a fairer and more consistent manner.
Before any the Justice Department’s proposals for amending Section 230 can push through, however, it will need to get the approval of Congress.
Despite many in both parties interested in changing the law, Congress as a whole is at an impasse on how to proceed with the matter. Some Democrats support changes to Section 230; however, they also question the Trump administration’s aims.
“I’ve certainly been one of Congress’ loudest critics of Section 230, but I have no interest in being an agent of Bill Barr’s speech police,” Connecticut Sen. Richard Blumenthal said.
Those within the Republican party, however, have been more receptive.
“I’m glad to see Attorney General Barr taking action to roll back Section 230 immunity,” wrote Georgia Rep. Doug Collins on Twitter. “Google—along with every other big tech company—shouldn’t be allowed to get away with content filtering or censorship.”