Graham Eyes Senate Judiciary Sect. 230 Vote; DOJ Wants Safe Harbor Carve-Outs

Graham’s comments came the same day DOJ released “reform proposals” to update “outdated immunity” under Section 230 of the Communications Decency Act and provide incentives for platforms to address illicit material. The department proposed a safe harbor carve-out for platforms that have “actual knowledge” of criminal activity and don’t act within a reasonable amount of time, or “where a platform was provided with a court judgment that the content is unlawful, and does not take appropriate action.”

DOJ recommended a statutory definition for “good faith." Legislators could limit immunity for content moderation decisions “done in accordance with plain and particular terms of service and consistent with public representations.” The proposal comes after a 10-month DOJ review (see 2002190056). Graham welcomed DOJ’s involvement, saying, “There’s a bipartisanship rolling around that we can do better than this.”

Also Wednesday, Republican senators introduced legislation that would alter Section 230. It would let users sue platforms that fail to uphold contractual duties for operating in “good faith.”

DOJ’s proposal and the Republican bill each address “good faith.” Introduced by Sens. Josh Hawley, Mo.; Marco Rubio, Fla.; Mike Braun, Ind.; Tom Cotton, Ark.; and Kelly Loeffler, Ga., the Limiting Section 230 Immunity to Good Samaritans Act would force companies to update their terms of service to “operate in good faith and pay a $5,000 fine (or actual damages, if higher) plus attorney’s fees if they violate that promise.”

Republicans seem to favor the First Amendment only when the speech supports their interests, Sen. Ron Wyden, D-Ore., told us. He noted that the FCC and FTC don’t have jurisdiction to police Section 230 in the way Trump proposed.

FCC Commissioner Geoffrey Starks raised First Amendment concerns Wednesday about President Donald Trump’s executive order, saying free speech allows companies to censor content they find objectionable. Otherwise, there would be a user-generated free for all, Starks said. The FCC has an obligation to focus on the law as written, he said. Starks said Congress is the proper venue for any potential alterations to Section 230. Regardless of the merits, the EO shows a clear intention from the president to influence how social media companies operate when their decisions have a major impact on elections, Starks told the Information Technology and Innovation Foundation.

The commissioner again urged NTIA to submit its petition for rulemaking (see 2006040056) as soon as possible and for commission Chairman Ajit Pai to move to a decision this summer to stop the issue from lingering beyond the election. If the petition fails at a legal question of authority, the FCC should state that “loud and clear” and shut the book on this “unfortunate detour,” Starks said. Pai’s office declined comment.

Starks expressed doubt the agency has the authority to clarify the scope of Section 230, as outlined in the EO. Any potential changes to the law are best settled by Congress, he said. He anticipates NTIA and others might argue Congress has left a gap for the FCC to fill by defining “good faith” in Section 230. But Starks said “good faith” is a litigated issue, and courts should undertake that analysis.

DOJ recommended a clarification that Section 230 doesn’t “apply to civil enforcement actions brought by the federal government.” Another recommendation is to make clear that Section 230 immunity doesn't cover federal antitrust claims. “It makes little sense to enable large online platforms (particularly dominant ones) to invoke Section 230 immunity in antitrust cases, where liability is based on harm to competition, not on third-party speech,” DOJ said.

Opposition

Industry reaction was negative.

Exposing platform moderation decisions to “second-guessing via a never ending slew of frivolous lawsuits would not make the internet better or safer,” Internet Association interim CEO Jon Berroya said of the Republican bill. “The First Amendment exists to protect individuals and entities from exactly this type of governmental intrusion into private activity, something courts have repeatedly affirmed." Concerning DOJ’s efforts, he said weakening Section 230 would make platforms less safe, reverting to a pre-230 era in which websites faced liability for removing things like spam and profanity.

Public Knowledge also raised concerns about the Republican bill and DOJ’s proposal. Legal Director John Bergmayer said “speech regulations of this kind are, if anything, more likely to lead to platforms taking a ‘hands off’ approach to content moderation, stymying efforts to get platforms to do more to combat online misinformation, fraud, criminality, and abuse.”

The administration is “weaponizing” DOJ and Congress to “control online speech, not stop bad actors,” said NetChoice Vice President Carl Szabo. DOJ’s proposal would remove “language that provides legal certainty for the removal of everything from coronavirus misinformation to racism to disinformation by foreign intelligence operatives,” said Computer & Communications Industry Association President Matt Schruers. He called it a “shockingly ill-conceived proposal.”

“When it comes to issues of public safety, the government is the one who must act on behalf of society at large,” Attorney General William Barr said. “Law enforcement cannot delegate our obligations to protect the safety of the American people purely to the judgment of profit-seeking private firms.” Platforms are “unaccountable for a variety of harms flowing from content on their platforms” and have “virtually unfettered discretion to censor third-party content with little transparency or accountability,” DOJ said.