Attorney General William Barr signaled this week that the Justice Department is looking seriously, and critically, at social media platforms' Sec. 230 immunity from liability for third-party posts.
"Section 230 has garnered significant attention from experts, consumer groups, and legislators," Barr said in a speech in Washington to the National Association of Attorneys General (NAAG), almost all of whom are investigating social media giants, as is DOJ, for potential anticompetitive conduct. "Within DOJ, we also have started thinking critically this issue."
He is far from alone. Both Republicans and Democrats in Congress have raised issues about whether the section is relevant in a world of dominant social media platforms rather than a nascent industry in need of bootstrapping. That includes Sen. Ron Wyden (D-Ore.), who co-authored Sec. 230.
Barr said that DOJ is looking beyond antitrust to other policy frameworks and non-antitrust issues, like whether Sec. 230 has outlived its usefulness, and how Justice and states can address them.
He cited NAAG's letter to Congress last May proposing an amendment to the Communications Decency Act carving out state law from Sec. 230 immunity and said Justice was also looking at the section with a critical eye.
He said the primary purpose of Sec. 230 was to encourage platforms to self-regulate by granting immunity for blocking and filtering, as well as to encourage speech by immunizing the platforms from liability over what posters said.
"Section 230 was passed at a time where the internet was relatively new, and Congress wanted to protect the growth of online services and the ability for the internet to offer “a forum for true diversity of political discourse," said.
But he signaled that he thought the courts had expanded that original charter, citing the "staggering breadth of Section 230 immunity, as construed by the courts."
"Today, many are concerned that Section 230 immunity has been extended far beyond what Congress originally intended. Ironically, Section 230 has enabled platforms to absolve themselves completely of responsibility for policing their platforms, while blocking or removing third-party speech – including political speech – selectively, and with impunity."
Republicans have been particularly critical of what they argue is social media bias against conservative political speech.
"Some also question whether such a broad immunity is still necessary to protect online companies," said Barr. "Indeed, ten years ago, a Ninth Circuit opinion denying Section 230 immunity in part remarked: 'The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses.' "
Barr said Justice would be working with the AGs on the issue, as well as engaging stakeholders in a public workshop. But he made it clear that he thought the court's expansion of liability was a digital bridge too far that had warped the original intent of Congress.
"The purpose of Section 230 was to protect the 'good Samaritan' interactive computer service that takes affirmative steps to police its own platform for unlawful or harmful content," he said. "Granting broad immunity to platforms that take no efforts to mitigate unlawful behavior or, worse, that purposefully blind themselves — and law enforcers — to illegal conduct occurring on, or facilitated by, the online spaces they create, is not consistent with that purpose."
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