DOJ Exploring Changes to Section 230 Immunity from Civil Liability
As part of its broader efforts to increase regulation of technology companies like Facebook and Google, the Department of Justice (DOJ) has announced that it is actively looking for ways to pare back the key legal immunity—Section 230 of the Communications Decency Act (CDA)[1]—that tech companies rely on when they post user content. This picks up on recent calls by some in Congress to limit Section 230’s protections; DOJ review may be an opportunity to reduce the heat surrounding those discussions and bring thoughtful consideration to bear.
The Attorney General says the department will be meeting with industry—among others—to gather input. Several components within DOJ have an interest in these issues, from the Office of Legal Policy to the Civil Division attorneys that look at technology and consumer protection issues. To ensure balance in DOJ’s considerations, it is advisable that a wide array of companies weigh in. It is unclear how DOJ’s efforts will be impacted by the U.S.-Mexico-Canada free trade deal, which reportedly includes Section 230’s language.
Hailed by many in the tech community as the most valuable tool for protecting freedom of expression and innovation on the internet, Section 230 is also criticized by many in the law enforcement community as the most significant barrier to rooting out unlawful content on the internet. In giving technology companies an immunity from liability for publishing third-party content, Section 230 also disincentivizes them from policing the third-party content they publish.
Although the U.S. Supreme Court has yet to interpret Section 230, the federal courts of appeals have made clear that, as a general matter, Section 230 protects technology platforms like Google and Facebook from civil liability under federal and state law for material posted to their platforms by users.[2] (Companies can still be held liable for violations of federal criminal law and intellectual property law.) In essence, this means that Attorney General Barr and the state attorneys general cannot bring civil lawsuits against technology companies for publishing third-party content that the attorneys general view as harmful to the public.
That DOJ is considering changes to Section 230 should be of great concern to technology platforms and their users. One cannot dispute that over the 25 years of Section 230’s existence, the internet has witnessed an incredible degree of freedom of expression and innovation. Government tinkering with the CDA should not be undertaken lightly. Although increased regulation of technology companies may be desirable from a law enforcement perspective in order to combat unlawful content on the internet, any proposed changes to the CDA will be controversial and should be narrowly tailored to ensure that freedom of expression and innovation are preserved.
From our respective experience handling section 230 issues and in DOJ leadership, it is clear this effort will have a lot of input, internal debate, and external scrutiny. Whatever the DOJ concludes, it is sure to be closely scrutinized.
[1] 47 U.S.C. § 230
[2] E.g., Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093, 1096-97 (9th Cir. 2019); Force v. Facebook, Inc., 934 F.3d 53, 63-64 (2d Cir. 2019).
