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Section 230

Attorney General Bill Barr Calls for ‘Recalibrated’ Section 230 as Justice Department Hosts Tech Immunity Workshop

Adrienne Patton

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Photo of Attorney General Bill Barr in May 2019 by Shane McCoy used with permission

WASHINGTON, February 19, 2020 – Attorney General William Barr laid out the case for “recalibrating” Section 230 of the Communications Decency Act in response to what he called a concentrated power over information that resides in the hands of Silicon Valley tech companies.

Because “the big tech platforms of today often monetize” their power through advertising, “their financial incentives in content distribution may not always align with what is best for the user,” Barr said in remarks kicking off a Wednesday workshop at the U.S. Justice Department.

Originally a non-controversial law seen as a means to incentivize online free speech, Section 230 has come to be seen as amplifying the ills wrought by information technology. Populists on the right and progressives on the left are now calling for changes to Section 230.

The Justice Department’s workshop may be an effort to put Section 230 protections for tech companies on the chopping block.

At the same time, Barr’s agency is leading a major antitrust inquiry into the tech sector, potentially up to and including efforts to break up Google or Facebook.

“While the department’s antitrust review is looking at these developments from a competition perspective, we must also recognize what this concentration means for Section 230 immunity,” Barr said.

Background about the origins of Section 230

Section 230 became law as part of the 1996 Telecommunications Act. In those early days of the internet, Section 230 arose against a backdrop of online service providers such as America Online, CompuServe, and Prodigy. CompuServe did not engage in any form of content moderation, whereas Prodigy positioned itself as a family-friendly alternative by enforcing content guidelines and screening offensive language.

It didn’t take long for both platforms to be sued for defamation. In the 1991 case Cubby v. CompuServe, the federal district court in New York ruled that CompuServe could not be held liable for third party content of which it had no knowledge, similar to a newsstand or library.

But in 1995, the New York supreme court ruled in Stratton Oakmont v. Prodigy that the latter platform had taken on liability for all posts simply by attempting to moderate some, constituting editorial control.

The decision prompted pro-technology representatives Ron Wyden, D-Ore., and Rep. Chris Cox, R-Calif., to introduce an amendment to the Communications Decency Act, ensuring that providers of an interactive computer service would not be held liable for third-party content, thus allowing them to moderate with impunity.

See Broadband Breakfast’s four-part series on the CDA:

Section I: The Communications Decency Act is Born

Section II: How Section 230 Builds on and Supplements the First Amendment

Section III: What Does the Fairness Doctrine Have to Do With the Internet?

Section IV: As Hate Speech Proliferates Online, Critics Want to See and Control Social Media’s Algorithms

Barr blasts the ‘many’ problems with a ‘broad Section 230 immunity’

At the Justice Department on Wednesday, Barr made his views known for changing the law. He said that “the Department of Justice is concerned about the expansive reach of Section 230.” He complained that Section 230 blunts the impact of civil tort lawsuits that should have a greater bite in complementing criminal law enforcement efforts of the Justice Department.

In particular, he said, “the Anti-Terrorism Act provides civil redress for victims of terrorist attacks on top of the criminal terrorism laws, yet judicial construction of Section 230 has severely diminished the reach of this civil tool.”

Second, he said that “broad Section 230 civil immunity” can actually be used against the federal government. That was something, he said, that was not intended by the framers of Section 230.

Third, Barr said that Section 230 makes it harder to police “lawless spaces” online. “We are concerned that internet services, under the guise of Section 230, can not only block access to law enforcement — even when officials have secured a court-authorized warrant — but also prevent victims from civil recovery.”

“The concerns regarding Section 230 are many and not all the same,” Barr concluded. And yet he added: “We must also recognize the benefits that Section 230 and technology have brought to our society, and ensure that the proposed cure is not worse than the disease.”

First panel at the Justice Department workshop addressed free speech in light of Section 230

The first panel focused on the issue of liability for speech that takes place on tech platforms.

Section 230’s use of the word “publisher” makes it clear that this statute refers to defamation law, said Annie McAdams, a lead counsel in lawsuits against Backpage.com and Facebook over human trafficking.

The 26 words in Section 230 (c)(1) read: “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.”

But as is often the case with debates about Section 230, McAdams was met with pushback by her fellow panelists.

While legal experts usually cite the Stratton Oakmont v. Prodigy decision is discussing Section 230, Fordham University School of Law Professor Benjamin Zipursky said he saw state tort law as a crucial element to understanding the law.

Zipursky referring to the entirety of Section 230 subsection (c). Subsection (c)(1) is about “treatment of publisher or speaker.” But subsection (c)(2) concerns the  broader issue of civil liability for actions taken by tech companies to restrict indecent material on their platforms.

Indeed, the entire Section 230(c) is subtitled as a “protection for ‘Good Samaritan’ blocking and screening of offensive material.”

According to Zipursky, after Prodigy was sued for attempting to filter information to some degree, companies wanted to avoid filtering at all costs so that they wouldn’t be considered a “publisher.”

Zipursky compared companies’ weariness to filter content with the legal obligations of those who provide emergency medical care.

Before state-wide “Good Samaritan” laws were passed, people who performed CPR or other emergency medical care were liable for any damages or injuries. Now, “good Samaritans” are protected for their effort to help and save, just as are  “interactive computer services” under Section 230.

Zipursky agreed that Section 230 has defamation-related language, but that McAdams’ interpretation isn’t a “realistic way” to view it, said Zipursky.

WilmerHale Partner Patrick Carome said that Section 230 liability protections were intended to be vast, and not just limited to defamation. And that is because of the excessive amounts of content that these platforms have to manage, he said.

Carome defended Section 230, arguing that it fostered an environment where small companies can also succeed. Allowing companies to self-moderate makes room for future companies to continue developing, and that Section 230 does what good laws do, he said: It “puts the focus on the actual wrongdoers.”

He also took vigorous exception to Attorney General Barr’s statement about Section 230 cutting into the ability of victims of terrorism to get compensation from platforms. “It’s just flat out wrong,” said Carome. “Those cases are for the most part being decided not on Section 230 grounds.”

Was Section 230 designed to limit liability for more than just publishing?

United States Naval Academy Professor Jeff Kosseff agreed that Section 230 cast a broader net. The authors of Section 230 did not intend for the law to be narrow and solely for defamation, he said. While he said that he anticipated political forces leading eventually to changes in Section 230,  those changes need to be carefully constructed so as to not stifle competition.

But Carrie Goldberg, a victims' rights attorney who specializes in revenge porn case, agreed with McAdams. One of Goldberg’s clients attempted to sue Grindr, when an abusive ex impersonated him and sent his geolocation to several people through the app.

Section 230 is being used as an excuse to not intervene, she said. Section 230 puts users in danger and denies them “access to justice,” she said.

In response to Carome’s remark that Goldberg’s client should have been aided by the criminal justice system, Goldberg said Section 230 needs to be reformed because “it’s gone too far.”

Carome pushed back, reminding panelists that Section 230 does not only pertain to big tech. It protects the thousands of sites that would not survive “10,000 bites of litigation,” said Carome.

Zipursky advocated for “crafting a middle path” compared to the current law, instead of moving ahead with a “kneejerk reaction.”

Section 230’s impact upon criminal conduct

The second panel of the day focused on whether Section 230 liability had facilitated criminal activity.

University of Miami Professor Mary Anne Franks noted the irony of Section 230’s Good Samaritan clause. It does not model helpful behavior, but rather amplifies harm and profits from it, said Franks. Indeed, she said that subsection (c)(1) actually disincentivizes the tech platforms like Google and Facebook from acting as “good Samaritans.”

But Kate Klonick, a professor  at St. John’s University, disagreed. Large tech players like Facebook have economic incentives to avoid bad press. Additionally, it knows that advertisers do not want ads nearby or associated with harmful content, she said.

Moreover, tech develops at such rapid speeds it is difficult to foresee the consequences of rushed responses to the current law, said Klonick.

Computer and Communications Industry Association President Matt Schruers said that many of the larger companies have already taken initiative in following Section 230 and reporting harmful activity.

Schruers said that Section 230 does generate positive incentives because it allows companies to build platforms without fear of litigation. Removing subsection (c)(1) would result in a “heckler’s veto”: Important content on tech platforms would be deleted out of fear of liability.

When asked about the future possibility of artificial intelligence regulating bad content, Franks said the tech industry is always promising to fix tech issues with more tech. She called this an “illusion.”

As an example of big tech facilitating crime, Franks brought up Facebook Live. When Facebook Live was created, people were livestreaming crimes like rape and murder, said Franks. “This is the world that Section 230 built."

Mark Zuckerberg did not kill anyone, countered Klonick, to applause from the audience. She said Franks was taking issue with humanity, and that Facebook was just the tool used to exhibit these actions.

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