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New DOJ Proposal Aims to Shrink Big Tech’s Liability Shield

Philip R. Stein

New legislation proposed yesterday by the Department of Justice (DOJ) would make significant changes to the Communications Decency Act, which largely shields the tech industry from legal liability for content posted on their online platforms. The DOJ’s proposed reform is similar to other proposed legislation already introduced by lawmakers, but may provide additional impetus for changes to the Act.

The DOJ’s proposed legislation seeks reforms of two types. First, it attempts to impose a more difficult standard that online platforms (for example, Google, Twitter, and Facebook) must satisfy to receive the liability protections provided by Section 230 of the Communications Decency Act. Second, it would establish carve-outs from the statute’s immunity protections, meaning that in certain types of cases, such as matters involving child sexual abuse, the platforms or service providers would not be immune from liability. 

Section 230 protects online platforms from liability for their users’ posts. It also permits them to moderate and remove posted content they deem to be harmful or dangerous without being penalized for doing so.

The DOJ proposal asks Congress to narrow the standard that tech companies must meet to remove content considered “obscene, lewd, lascivious, filthy, [or] excessively violent.” Currently, that standard is subjective, essentially permitting the online platform to determine whether content is indeed so offensive or disturbing as to require removal. The proposed reform would take away much of that discretion from tech companies by moving to an “objectively reasonable belief” standard, making it more difficult for a tech company to restrict content.

The second key component of the DOJ’s proposal, the carve-outs, would deny immunity to platforms that “purposefully fail” to take action regarding content that violates federal criminal law. In such circumstances, platforms could be held civilly liable if they do not promptly remove or restrict posts that would violate federal criminal law, or if they fail to report illegal material to law enforcement.

The proposed legislation sets the DOJ (and Congressional backers of similar draft legislation) squarely at odds with the big tech companies and their advocacy groups, which have repeatedly called upon Congress to determine that Section 230’s protections should be maintained. “It is because of, not in spite of, Section 230 that so many voices from across the political spectrum can express their thoughts online,” the Internet Association said in a statement following the announcement of the DOJ proposal.

 
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