Justice Department Seeks to Limit Websites’ Legal Shield

The Justice Department on Wednesday sent its proposal to Congress to rein in a legal shield treasured by online platforms such as Alphabet Inc.’s Google, ahead of President Donald Trump’s White House event on alleged anti-conservative bias by tech companies.

Trump and Attorney General William Barr are slated to meet Wednesday afternoon with Republican state attorneys general to discuss the allegations of bias by the tech companies, which the firms deny.

The Justice Department’s proposals will impose new requirements on the companies to manage their content and policies in order to get the legal immunity provided for by Section 230 of the Communications Decency Act.

Republican and Democratic lawmakers are also increasingly seeking to change the law, although they rarely agree on the approach. The current Congress isn’t likely to pass any changes to the law, with weeks to go before the election.

The push to revise Section 230 is also coming as the Justice Department prepares to launch a historic antitrust lawsuit against Google, part of a broader assault on the power of giant technology companies.

Law’s Provisions

Section 230 doesn’t address competition, but allows websites such as Google and Facebook Inc. to avoid lawsuits for content that users post. Conservatives increasingly say it enables the companies to systematically silence right-wing content without consequence, while lawmakers on both sides of the aisle worry that it does little to incentivize the companies to tackle illegal drugs, threats, child sex abuse, stalking and defamation online.

The proposals would limit the companies discretion over removals of information, including posts that could be construed as political, while creating more liability under antiterrorism, child sex abuse, cyberstalking and antitrust laws. It would also deny platforms immunity if they purposely promote, solicit or facilitate the spread of material they know violates federal criminal law, and force them to adhere to specific terms of use.

The Justice Department in June had already proposed a first round of overhauls to the law, and the Trump administration has prompted the Federal Communications Commission to look into changes through rulemaking.

The efforts came after Twitter Inc. put fact checks and warnings on Trump posts, prompting concerns by Democrats and legal scholars that the president was trying to punish the companies’ constitutionally protected exercise of free speech.

Online platforms have argued that Section 230 protects free discourse online, particularly by stopping users from threatening litigation against websites over legal content with which they merely disagree. At the same time, they say the law’s grants of broad discretion to remove material allows them to take down the most offensive and harmful posts, whereas narrow rights to remove only specific categories of information would slow them down and risk polluting the online environment more.

Despite his claims of censorship, Trump communicates with Americans directly on social media and took the White House at the very outset of his political career in part through his prolific use of Twitter. Social media companies have conceded that they have liberal workforces and have made mistakes on political speech, but say that their limits on conservative and liberal figures stem largely from particular actions that violate the terms of service users signed, such as spreading misinformation on voting.

Also on Wednesday, Justice Department staff are expected to brief states on an antitrust case against Google, which the U.S. is expected to file within days, Bloomberg has reported. It focuses on the company’s alleged anticompetitive behavior involving its dominant search business.

Some of those states, particularly Republican ones, could sign on, Bloomberg has reported. Additional cases could arise out of a multi-state antitrust investigation that has been going on in parallel to the federal probe. Texas Attorney General Ken Paxton is leading an inquiry that focuses on the company’s position in the online ad market and could launch a separate case soon after the Justice Department files its suit.

©2020 Bloomberg L.P.

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