DOJ proposes rollback of legal shields for Twitter, Facebook

The DOJ proposal, released Wednesday, would require online platforms to be more aggressive in policing harmful and illegal content on their sites and to implement policies to police, label, and even remove objectionable content on their platforms. The proposed rule changes would also promote transparency, the DOJ said, by forcing online platforms to be held accountable for their actions.

The new rules would rework Section 230 of the Communications Decency Act of 1996, which contains language that shields social media giants like Google, Facebook, and Twitter—and online marketplaces like Amazon, eBay, and Walmart—from liabilities stemming from user content distributed across their platforms.

The DOJ said its proposal finds middle ground between online platforms’ argument to leave the protections in place while others have called for an outright repeal of the statute.

“These twin objectives of giving online platforms the freedom to grow and innovate while encouraging them to moderate content responsibly were the core objectives of Section 230 at the outset,” Attorney General William Barr said in a press release. “The Department’s proposal aims to realize these objectives more fully and clearly in order for Section 230 to better serve the interests of the American people.”

The proposal would also strip away legal protections for online platforms that facilitate third-party activity that violates criminal law. Specific carve-outs in the proposal would bar immunity for aiding or promoting criminal activity like child abuse, terrorism, and cyber-stalking. Internet companies would lose civil protections if they were shown to have been aware of unlawful conduct taking place on their sites, opening them up to monetary damages from lawsuits filed by those harmed by fraud or other illegal conduct.

Internet companies would lose immunity from civil enforcement actions brought by the federal government and could not use immunity as a defense against antitrust allegations.

Twitter has consistently maintained removing the protections would threaten the future of online speech and Internet freedoms. Facebook has said removing immunity would restrict more speech online “by exposing companies to potential liability for everything that billions of people around the world say.”

For all the DOJ’s language about fairness and transparency, the dispute on immunity for online platforms began when, after President Trump tweeted out threats and falsehoods, Twitter responded by blocking his incendiary tweets or by slapping them with fact-check warnings.

Trump decried the blocking and labels amounted to censorship and claimed they pulled back the veil on Twitter’s bias against conservative viewpoints like his own. At one point, Trump said if his lawyers could find a way to allow him to take down Twitter, “I would do it.”

Some of Twitter’s fellow social media kingpins, namely Facebook, have taken a decidedly more hands-off approach on such matters. Facebook has created a policy that restricts some type of advertising but has few limits on what users themselves can post.

In May, Trump signed an executive order that sought to roll back protections for online platforms. The DOJ’s proposal was the next logical step.

The DOJ’s proposal is far from the last word on the matter. It now must be ratified by a divided Congress that has shown little inclination to find bipartisan solutions to America’s problems, polarized as it is by a Republican-majority Senate and a Democratic-majority House.