Here’s what’s on the Department of Justice’s Section 230 wish list

The Department of Justice fired a warning shot against Section 230 on Wednesday, sending Congress proposed legislation that would limit platforms' protections under the law and create a carve-out for so-called "bad Samaritans" who purposely promote, solicit or facilitate criminal activity.

Both the White House and Attorney General William Barr have argued that Section 230 is overly broad, protecting predators on the internet and enabling alleged censorship of conservatives. Some of their Republican colleagues in Congress have mounted much the same argument, introducing legislation that would curb Section 230 protections. But, with this proposal, the DOJ is asking them to do more.

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The proposal was almost immediately met with confusion by even some Section 230 experts. "I think this proposal is a mess, and I don't know if that's on purpose," said Blake Reid, a professor of tech policy at Colorado Law. "That is not a great way to run the railroad for a statute that governs a huge swath of activity that happens online."

"Why are they doing this now when we know that Congress doesn't have the time to make any progress on this?" asked Eric Goldman, a professor at Santa Clara University School of Law. "There's only one reason why they wanted to bring this out in October before an election."

Barring some act by Congress — which is in the final days of the session and currently consumed with a Supreme Court vacancy, an election and a pandemic — the proposal is mostly a rough sketch of what the DOJ wants out of Section 230 reform. Here are some of its biggest asks.

Strict adherence to terms of service

Conservatives have been claiming for years, without much evidence, that tech platforms enforce their terms of service unevenly based on the political leanings of their users. The DOJ's proposal attempts to get at that supposed problem by specifying that platforms can't be held liable for filtering content that violates their terms of service. That, Reid argues, is a "bank shot" way of saying that when platforms don't precisely follow their terms of service, they can be liable. That could have major implications for how tech platforms choose to moderate, Reid says.

"For some platforms, they'll look at this and say, 'We're going to moderate as little as possible because we don't want to inadvertently moderate something that's inconsistent with our terms of service,'" Reid said. "Another effect could be platforms draw their terms of service incredibly broadly, like, 'Under our terms of service, we can take down any of your content for any reason. Tough cookies.'"

A new definition of 'good faith'

Another way of getting at that same issue is creating a new definition for "good faith." Section 230 currently protects content moderation decisions that are made "in good faith" but doesn't define that term. The DOJ would create a definition that gives platforms precious little room for error. It would require them to publish their terms of service, restrict content only as it relates to their terms of service, give users "timely notice" about their content being taken down and, most importantly, not screw up. The new definition states that if platforms restrict one piece of content based on their terms of service but don't restrict another similar piece of content, they won't be acting "in good faith."

"It tries to cram into the term 'good faith' all these restrictions in how you set your terms of service up," Reid said.

Limits on content filtering

While the first part of Section 230 protects platforms from liability for what other people publish, the second part is the one that's most often overlooked. That's the part that protects platforms when they take content down. As it's currently written, Section 230 says platforms won't be held liable for good faith efforts to restrict content that is "obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable." The inclusion of "otherwise objectionable" is what has given platforms a lot of flexibility in designing their content moderation policies. But the DOJ's proposal would strike "otherwise objectionable" from the law and add some new categories, including content that promotes terrorism, violent extremism or self-harm.

Such a change wouldn't automatically make it illegal for platforms to take down otherwise objectionable content. But it would mean that doing so would open those platforms up to potential lawsuits that Section 230 currently shields them from. "Current good-faith moderation efforts that remove things like misinformation, platform manipulation and cyberbullying would all result in lawsuits under this proposal," Elizabeth Banker, deputy general counsel to the lobbying group the Internet Association, wrote in a statement.

Carve-outs for 'bad Samaritans'

Section 230 was written to protect "good Samaritan blocking and screening of offensive material." It was designed, in other words, to protect platforms that, despite putting in a genuine good faith effort to keep bad stuff off the internet, sometimes mess up. But over the years, it's also protected plenty of "bad Samaritans," like revenge porn operators or online auctions that deal in illicit goods. Section 230 scholars, including Danielle Citron, a professor of law at Boston University, have been arguing for years that Section 230 ought to be amended to deal with these so-called bad Samaritans.

The DOJ's proposal would create a carve-out in Section 230 for platforms that purposely promote, solicit or facilitate material that they know or believe might violate federal criminal law. The DOJ can already go after platforms for actively participating in criminal activity (that's how the FBI ended up taking down Backpage.com), but this proposal would broaden that power by giving victims the ability to sue as well. That aspect of the proposal was celebrated by Section 230 reformers like Carrie Goldberg, a lawyer who has represented victims of online harassment and cyberstalking in cases against companies like Grindr. "The bad Samaritan carve-out is excellent, and I'm thrilled the DOJ listened to us victim advocates," Goldberg said.

It seems wholly unlikely that Congress will move forward with these recommendations before the end of the session. But if the DOJ remains under Republican control, these issues aren't going to go away anytime soon.