Politics

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

The proposal submitted to Congress would limit Section 230 protections and create new carve-outs for "bad Samaritans."

Attorney General William Barr and President Donald Trump

The proposal was almost immediately met with confusion by even some Section 230 experts.

Photo: Drew Angerer/Getty Images

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.

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.

LA is a growing tech hub. But not everyone may fit.

LA has a housing crisis similar to Silicon Valley’s. And single-family-zoning laws are mostly to blame.

As the number of tech companies in the region grows, so does the number of tech workers, whose high salaries put them at an advantage in both LA's renting and buying markets.

Photo: Nat Rubio-Licht/Protocol

LA’s tech scene is on the rise. The number of unicorn companies in Los Angeles is growing, and the city has become the third-largest startup ecosystem nationally behind the Bay Area and New York with more than 4,000 VC-backed startups in industries ranging from aerospace to creators. As the number of tech companies in the region grows, so does the number of tech workers. The city is quickly becoming more and more like Silicon Valley — a new startup and a dozen tech workers on every corner and companies like Google, Netflix, and Twitter setting up offices there.

But with growth comes growing pains. Los Angeles, especially the burgeoning Silicon Beach area — which includes Santa Monica, Venice, and Marina del Rey — shares something in common with its namesake Silicon Valley: a severe lack of housing.

Keep Reading Show less
Nat Rubio-Licht

Nat Rubio-Licht is a Los Angeles-based news writer at Protocol. They graduated from Syracuse University with a degree in newspaper and online journalism in May 2020. Prior to joining the team, they worked at the Los Angeles Business Journal as a technology and aerospace reporter.

While there remains debate among economists about whether we are officially in a full-blown recession, the signs are certainly there. Like most executives right now, the outlook concerns me.

In any case, businesses aren’t waiting for the official pronouncement. They’re already bracing for impact as U.S. inflation and interest rates soar. Inflation peaked at 9.1% in June 2022 — the highest increase since November 1981 — and the Federal Reserve is targeting an interest rate of 3% by the end of this year.

Keep Reading Show less
Nancy Sansom

Nancy Sansom is the Chief Marketing Officer for Versapay, the leader in Collaborative AR. In this role, she leads marketing, demand generation, product marketing, partner marketing, events, brand, content marketing and communications. She has more than 20 years of experience running successful product and marketing organizations in high-growth software companies focused on HCM and financial technology. Prior to joining Versapay, Nancy served on the senior leadership teams at PlanSource, Benefitfocus and PeopleMatter.

Policy

SFPD can now surveil a private camera network funded by Ripple chair

The San Francisco Board of Supervisors approved a policy that the ACLU and EFF argue will further criminalize marginalized groups.

SFPD will be able to temporarily tap into private surveillance networks in certain circumstances.

Photo: Justin Sullivan/Getty Images

Ripple chairman and co-founder Chris Larsen has been funding a network of security cameras throughout San Francisco for a decade. Now, the city has given its police department the green light to monitor the feeds from those cameras — and any other private surveillance devices in the city — in real time, whether or not a crime has been committed.

This week, San Francisco’s Board of Supervisors approved a controversial plan to allow SFPD to temporarily tap into private surveillance networks during life-threatening emergencies, large events, and in the course of criminal investigations, including investigations of misdemeanors. The decision came despite fervent opposition from groups, including the ACLU of Northern California and the Electronic Frontier Foundation, which say the police department’s new authority will be misused against protesters and marginalized groups in a city that has been a bastion for both.

Keep Reading Show less
Issie Lapowsky

Issie Lapowsky ( @issielapowsky) is Protocol's chief correspondent, covering the intersection of technology, politics, and national affairs. She also oversees Protocol's fellowship program. Previously, she was a senior writer at Wired, where she covered the 2016 election and the Facebook beat in its aftermath. Prior to that, Issie worked as a staff writer for Inc. magazine, writing about small business and entrepreneurship. She has also worked as an on-air contributor for CBS News and taught a graduate-level course at New York University's Center for Publishing on how tech giants have affected publishing.

Enterprise

These two AWS vets think they can finally solve enterprise blockchain

Vendia, founded by Tim Wagner and Shruthi Rao, wants to help companies build real-time, decentralized data applications. Its product allows enterprises to more easily share code and data across clouds, regions, companies, accounts, and technology stacks.

“We have this thesis here: Cloud was always the missing ingredient in blockchain, and Vendia added it in,” Wagner (right) told Protocol of his and Shruthi Rao's company.

Photo: Vendia

The promise of an enterprise blockchain was not lost on CIOs — the idea that a database or an API could keep corporate data consistent with their business partners, be it their upstream supply chains, downstream logistics, or financial partners.

But while it was one of the most anticipated and hyped technologies in recent memory, blockchain also has been one of the most failed technologies in terms of enterprise pilots and implementations, according to Vendia CEO Tim Wagner.

Keep Reading Show less
Donna Goodison

Donna Goodison (@dgoodison) is Protocol's senior reporter focusing on enterprise infrastructure technology, from the 'Big 3' cloud computing providers to data centers. She previously covered the public cloud at CRN after 15 years as a business reporter for the Boston Herald. Based in Massachusetts, she also has worked as a Boston Globe freelancer, business reporter at the Boston Business Journal and real estate reporter at Banker & Tradesman after toiling at weekly newspapers.

Fintech

Kraken's CEO got tired of being in finance

Jesse Powell tells Protocol the bureaucratic obligations of running a financial services business contributed to his decision to step back from his role as CEO of one of the world’s largest crypto exchanges.

Photo: David Paul Morris/Bloomberg via Getty Images

Kraken is going through a major leadership change after what has been a tough year for the crypto powerhouse, and for departing CEO Jesse Powell.

The crypto market is still struggling to recover from a major crash, although Kraken appears to have navigated the crisis better than other rivals. Despite his exchange’s apparent success, Powell found himself in the hot seat over allegations published in The New York Times that he made insensitive comments on gender and race that sparked heated conversations within the company.

Keep Reading Show less
Benjamin Pimentel

Benjamin Pimentel ( @benpimentel) covers crypto and fintech from San Francisco. He has reported on many of the biggest tech stories over the past 20 years for the San Francisco Chronicle, Dow Jones MarketWatch and Business Insider, from the dot-com crash, the rise of cloud computing, social networking and AI to the impact of the Great Recession and the COVID crisis on Silicon Valley and beyond. He can be reached at bpimentel@protocol.com or via Google Voice at (925) 307-9342.

Latest Stories
Bulletins