Significant Changes to Section 230 are on the Horizon
Technology platforms’ key immunity from liability for posting and/or removing user content—Section 230 of the Communications Decency Act—is under fire from Congress and DOJ and is likely to change significantly in the near future. On March 5, 2020, Congress began considering the bipartisan EARN IT Act, which would exempt from Section 230 immunity user posts that contain child pornography or other material relating to the sexual exploitation of minors. In addition, on March 10, 2020, DOJ began pitching four changes to Section 230 that would sharply pare back the scope of the immunity, far beyond the EARN IT Act’s proposed changes. Given bipartisan political scrutiny of technology platforms and Section 230, it seems inevitable that significant changes are on the horizon.
EARN IT Act: The Act would remove from Section 230 immunity a technology platform’s posting of user content that is child pornography or other material relating to the sexual exploitation of minors. Technology platforms could “earn” immunity back by certifying to the Attorney General that they have implemented and are in compliance with child exploitation best practices adopted by a newly created National Commission on Online Child Sexual Exploitation Prevention. The Act has met with opposition from the technology industry, but that may only embolden Congress to send it to the President’s desk.
DOJ Proposals: As previously discussed on this blog, DOJ has been exploring changes to Section 230. On February 19, 2020, DOJ held a public workshop on Section 230 with nearly 500 attendees and thousands more streaming online. DOJ also held “a private roundtable with thought leaders on all sides of the Section 230 debate to discuss problems and solutions in more detail.” Coming out of those events, DOJ is now pitching four changes to section 230 that would substantially narrow the scope of the immunity. The four proposals, which are still in rough form, are:
Remove immunity for platforms that (a) “purposefully enable illegality and harm to children” or that (b) “set up their services in a way that makes it impossible for law enforcement to enforce criminal laws.”
Remove immunity for platforms when facing federal civil enforcement actions.
Narrow the immunity to civil liability for speech, not for other types of activity.
Narrow the “Good Samaritan” immunity for removing “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material—such as by taking out the words “or otherwise objectionable”—to ensure that platforms are not granted immunity for removing lawful speech or for censoring content that is not “obscene, lewd, lascivious, filthy, excessively violent, [or] harassing.”
These proposals are already being met with criticism. Nevertheless, given techlash and the politics on the Hill, a DOJ recommendation to rewrite Section 230 along these lines would carry significant weight in Congress.