US Department of Justice Backs Section 230 Killing Legislation

Trump’s legally questionable executive order that could kill the effectiveness of Section 230 got a big boost in support from the Department of Justice.

It all started with one of the many Twitter tantrums by the impeached president. At the time, Trump angrily tweeted out about mail-in ballots, floating the conspiracy theory that mail-in ballots leads to voter fraud. There is, of course, no basis for the conspiracy theory, but, as a general rule, reality has never stopped Trump and his supporters before. Why should reality stop them now? In response, Twitter did something no one expected of them, they gently enforced the rules on the US president. Twitter put a notice on the two tweets urging readers to get the facts on mail-in ballots.

In response, Trump did what any mentally immature person would do: throw an absolute tantrum over it. He vowed to hit back hard. Unlike his response to the global pandemic of COVID-19, Trump acted immediately and signed an executive order the very next day demanding that Section 230 be stripped of any platform engaged in the mythical anti-conservative bias and editing or enforcing rules about misinformation.

Of course, like any out of control maniac, Trump didn’t necessarily think any of this through. Section 230 protects platforms from liability of their users. So, if a user posts something illegal on the platform, as long as the platform responds in what is deemed legally reasonable, then they cannot be sued. So, in a legal sense, the executive order doesn’t make any sense. On the one hand, you don’t want them moderating content, but at the same time, if they don’t moderate content, then they could be liable because they didn’t respect Section 230. In short, it’s a legal catch-22. Already, some are pointing out that you can’t magically change the laws by executive order.

The next stage is what the Federal Communications Commission (FCC) has to say – the same FCC that voted to kill network neutrality. Earlier this month, Republican’s urged the FCC to look into the possibility of killing Section 230. So, already, the pressure is on for the FCC to go along with this short-sighted scheme sparked by a mere twitter tantrum.

Platforms, for their part, aren’t exactly taking this lying down. Already, a group backed by Twitter, Facebook, and Google filed a lawsuit in an effort to shoot down the executive order. Legally dubious or not, some platforms are not taking any chances here.

Now, it seems that the Department of Justice (DoJ) is backing Trumps Section 230 killing executive order. Word started circulating last night about this new found support. From Apple Insider:

According to the Wall Street Journal, the department is very shortly to announce reforms that would make technology firms more legally responsible for the content that users post on them.

As with the Executive Order, the proposed new legislation focuses primarily on Section 230 of the Communications Decency Act of 1996. Among other considerations, Section 230 broadly says that technology firms are required to police their own online sites. The proposal of the modification to Section 230 doesn’t alter that, but rather, more stringently enforces the requirement to do so.

There is already a bipartisan investigation into whether the Section 230, which was written in the earliest days of the internet, is still adequate or relevant. That investigation is broadly concerned with whether Section 230 facilitates online child abuse, but the Department of Justice’s plans are believed to be more specific.

The Wall Street Journal reports that a key aim of the Department of Justice legislation plans is to prevent technology firms from being able to arbitrarily remove content that users have posted. It isn’t clear how this reported Department of Justice angle dovetails with the stated goals of the modification, which would require more stringent moderation to keep legal protections of Section 230.

As we are finding out today, those suggestions wound up being true. The DoJ is supporting the move to kill Section 230. From CBS:

Washington — The Justice Department proposed a series of recommendations to lawmakers that would take aim at immunity protections enjoyed by internet companies for content created by users, the latest salvo in the Trump administration’s battle against the leading online platforms.

The department’s proposed reforms would make internet companies more responsible for policing illicit content that is posted on their platforms. Tech giants like Facebook, Twitter and Google have been in the crosshairs of the administration, and these recommendations would reduce their immunity under current law.

“This reform would focus the broad blanket immunity for content moderation decisions on the core objective of Section 230 — to reduce online content harmful to children — while limiting a platform’s ability to remove content arbitrarily or in ways inconsistent with its terms or service simply by deeming it ‘objectionable,'” the proposal said.

Critics of the administration’s efforts to roll back Section 230 argue that the government already has plenty of tools to go after harmful actors online. Aaron Mackey, a staff attorney at the Electronic Freedom Foundation, a nonprofit that promotes online civil liberties, said the proposed reforms are “dangerous” and would give the government “a weapon to retaliate against online services they dislike.”

“The proposal would eviscerate Section 230’s protections that give platforms discretion to remove harmful material such as spam, malware, or other offensive content without first having to know for certain that the material is illegal,” Mackey said in a statement to CBS News. “It would also empower federal agencies, including the DOJ, to bring civil enforcement actions against platforms, which officials could use as a cudgel against platforms they do not like.”

All of this leaves two questions: 1) How is the FCC ultimately going to respond and 2) Is congress going to get involved and, if so, how? At this point, we are still waiting on both. Still, for those who support Internet freedom, this is not a development they wanted to see. It suggests that momentum is shifting towards the forces that want to crack down on the Internet and all the freedoms that come with it.

Drew Wilson on Twitter: @icecube85 and Facebook.

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