Republicans, DOJ propose scaling back social media liability protections

Senate Republicans and the Justice Department unveiled proposals Wednesday that would scale back legal protections for social media platforms targeted last month by President Trump in an executive order.

The legislative and administrative moves take aim at a portion of a 1996 law that gives internet companies immunity from lawsuits for content posted on their sites by third parties and allows them to make “good faith” efforts to moderate content.

The provision, known as Section 230, has come under sharp criticism recently from the right, with Republicans accusing Silicon Valley of abusing the legal protection to censor conservative content.

In an attempt to erode some of those protections, Sen. Josh Hawley (R-Mo.) introduced a bill Wednesday that would make it easier for individuals to sue platforms that carry out improper moderation policies.

The Limiting Section 230 Immunity to Good Samaritans Act, co-sponsored by Republican Sens. Marco Rubio (Fla.), Mike Braun (Ind.) and Tom Cotton (Ark.), would require companies to prove a “duty of good faith” in their content moderation in order to receive Section 230 protections.

Violating that duty would be treated as worthy of damages, entitling plaintiffs to $5,000 for each affected user, along with attorney’s fees.

The measure would apply only to “edge providers,” which the bill defines as platforms with more than 30 million users in the U.S., or 300 million globally, and with over $1.5 billion in global revenue.

The Justice Department also put forward a proposal Wednesday, urging Congress to dramatically reduce Section 230’s scope.

The proposal would deny Section 230 immunity for content dealing with child exploitation, terrorism and cyber-stalking. It also recommends stripping protections from platforms that facilitate or solicit unlawful content or activity by third parties.

The DOJ called on Congress to make other changes to the statutory language, such as removing the “otherwise objectionable” phrase that allows platforms to engage in content moderation and replacing it with “unlawful” and “promotes terrorism.”

Another proposed change would add a statutory definition of “good faith” that requires content removal be consistent with terms of service and be accompanied by a “reasonable explanation.”

Wednesday’s proposals come less than a month after Trump’s executive order and reveal how Republicans plan to go after tech companies.

Trump’s order, among other things, directs an agency within the Commerce Department to file a petition with the Federal Communications Commission (FCC) to clarify the scope of Section 230.

The order implies that a new rule could make social media platforms liable for claims based on third-party content as well as their efforts to moderate their platforms, but does not have the legal authority to change the law passed by Congress in 1996.

A lawsuit has already been filed against the order, and many more are expected.

Tech experts and Silicon Valley were critical of both proposals rolled out Wednesday.

Mary Anne Franks, a professor at University of Miami School of Law, called Hawley’s bill a brazen attempt to flout the First Amendment prohibition against Congress making laws that abridge free speech.

“To penalize social media platforms and other Internet services for ‘selective’ enforcement of their own policies is to penalize them for exercising their First Amendment rights as private entities,” she told The Hill in an email. “Private companies, unlike government entities, have the First Amendment right to refuse to promote or host the speech of others, for whatever reason they like.”

David Morar, a fellow at the Digital Interests Lab, said the bill could end up being counterproductive by dissuading platforms from taking any action at all because of lack of clarity over what would be considered good faith or not.

Jon Berroy, the interim president and CEO of the Internet Association — a trade association that represents companies like Facebook, Google and Twitter — was similarly critical of the bill’s proposed mechanism.

“Opening up those moderation decisions to second-guessing via a never ending slew of frivolous lawsuits would not make the internet better or safer,” he said in a statement. “The First Amendment exists to protect individuals and entities from exactly this type of governmental intrusion into private activity, something courts have repeatedly affirmed.”

The Internet Association also slammed the DOJ’s proposed rule changes, saying they would “make it harder, not easier, for online platforms to make their platforms safe.”

The Computer & Communications Industry Association took particular issue with removing “otherwise objectionable” from the second part of the statute, saying it would limit the ability of companies to moderate problematic content.

“This is a shockingly ill-conceived proposal,” said Matt Schruers, president of the group that also represents many major tech companies.

“Amid a pandemic, pervasive racial injustice, in an election season, the Justice Department proposes to remove from this critical statute the language that provides legal certainty for the removal of everything from coronavirus misinformation to racism to disinformation by foreign intelligence operatives,” he said.