Today the Justice Department announced its proposed legislative reform for Section 230. In its press release, the Justice Department states that "the draft legislative text implements reforms that the Department of Justice deemed necessary in its June Recommendations and follows a yearlong review of the outdated statute. The legislation also executes President Trump’s directive from the Executive Order on Preventing Online Censorship." The President introduced the executive order on May 28th of this year.
Section 230 has often provided cover to big tech and online platforms. Josh Hawley (R-MO), wrote a concise paper on the history of the law highlighting its shortcomings with respect to the growth and expansion of those online platforms. Hawley writes that the original law was initially, "a small add-on to a much larger bill: the Communications Decency Act of 1996 (CDA). Big Tech is eager to focus solely on the immunity provision of 230, but the purpose of the CDA was much broader. In fact, it was just the opposite of what Big Tech and its allies argue. Its express design included imposing liability of internet platforms."
As AG William Barr states in the announcement, “For too long Section 230 has provided a shield for online platforms to operate with impunity,” said Attorney General William P. Barr. “Ensuring that the internet is a safe, but also vibrant, open, and competitive environment is vitally important to America. We, therefore, urge Congress to make these necessary reforms to Section 230 and begin to hold online platforms accountable both when they unlawfully censor speech and when they knowingly facilitate criminal activity online.”
Earlier this year, Twitter and other platforms began to add "fact-checkers" to their sites. President Trump has been a target of those fact-checkers on several occasions. Recently Twitter targeted a campaign video he had posted there. His tweet on June 5 protested the fact that Twitter removed the video.
The Department of Justice draft legislation focuses on two broad areas of reform. They are "Promoting Transparency and Open Discourse" and "Addressing Illicit Online Activity”. The process was collaborative, "highlighted by victims, businesses, and other stakeholders in the conversations and meetings the Department held to discuss the issue." The proposed legislation attempts to clarify and better define the language of the 1996 law to meet the demands of today's online content.
Transparency and Open Discourse
In the area of Transparency and Open Discourse, "the draft legislation has a series of reforms to promote transparency and open discourse and ensure that platforms are fairer to the public when removing lawful speech from their services. The current interpretations of Section 230 have enabled online platforms to hide behind the immunity to censor lawful speech in bad faith and is inconsistent with their own terms of service. To remedy this, the department’s legislative proposal revises and clarifies the existing language of Section 230 and replaces 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."
Illicit Online Activity
The second category of amendments addresses Illicit Online Activity "while preserving the core of Section 230’s immunity for defamation claims." Essentially, it clarifies and preserves "Good Samaritan" immunity and adds carve-outs for "Bad Samaritan" activity so that the circumstances for immunity are well defined and delineated. The Ramseyer Draft Legislative Reforms painstakingly reforms the intent and language of Section 230 to both preserve free speech and protect the vulnerable in the age of the internet.
This legislation addresses the language of Section 230 with an eye to holding big tech platforms accountable for their content. Often a platform pretending to be a content distributor becomes, instead, a publisher. There is a big difference in liability between the two and this law attempts to make those differences explicit. The Department of Justice "legislative package provides a clear path forward on modernizing Section 230 to encourage a safer and more open internet."
