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DOJ's Rosen: Sec. 230 is Potentially Ripe for Engagement

Deputy Attorney General Jeffrey Rosen told a Free State Foundation audience Tuesday (March 10) that the Justice Department's investigation into Sec. 230 of the Communications Decency Act, part of a wider look into online platforms and antitrust, is focusing on four areas for potential "engagement" and said it was time for Congress to assess what changes needed to be made in the section.

Sec. 230 protects online platforms from civil liability for third party content, and for removing content when they have a good faith belief that it objectionable according to various guidelines in the section.

Related: When Sec. 230 Policy Becomes Personal

In a speech to the Free State Foundation Tuesday (March 10), Rosen outlined the four areas "potentially ripe for engagement:

1. Rosen asked why Web sites that "purposely" enable illegal activity and prevent law enforcement from enforcing criminal laws should not have to defend the reasonableness of their conduct. He said there is now a carveout for Web sites that purposely promote sex trafficking.

2. He said Justice was also concerned about the impact on law enforcement of use of the section as a defense against government civil actions

3. He said that civil liability makes some sense in cases where a social media site can't know whether the soup was actually cold in a restaurant review or a nosey neighbor's comment on the person down the street was accurate. But expansions into areas with little connection to the statue's purposes was more problematic.

4. Justice is concerned about expanding immunity beyond the content types listed in the statute, i.e. lewd, obscene, filthy" and using the "otherwise objectionable," definition as a blank check to censor content beyond the statute's goals, which included creating a safe space for kids.

The Trump Administration and Republicans in general are concerned that the section has been used to censor conservative speech.

Rosen also said Congress needs to consider tweaking the section to come up with a better definition of "good faith" and reconsider whether to include "otherwise objectionable" as an option. He said they should be able to choose what not to carry, but should not have carte blanche statutory authority to censor content.