Source Code: Your daily look at what matters in tech.

source-codesource codeauthorIssie LapowskyNoneWant your finger on the pulse of everything that's happening in tech? Sign up to get David Pierce's daily newsletter.64fd3cbe9f
×

Get access to Protocol

Your information will be used in accordance with our Privacy Policy

I’m already a subscriber
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.

The metaverse is coming, and Robinhood's IPO is here

Plus, what we learned from Big Tech's big quarter.

Image: Roblox

On this episode of the Source Code podcast: First, a few takeaways from another blockbuster quarter in the tech industry. Then, Janko Roettgers joins the show to discuss Big Tech's obsession with the metaverse and the platform war that seems inevitable. Finally, Ben Pimentel talks about Robinhood's IPO, and the company's crazy route to the public markets.

For more on the topics in this episode:

Keep Reading Show less
David Pierce

David Pierce ( @pierce) is Protocol's editor at large. Prior to joining Protocol, he was a columnist at The Wall Street Journal, a senior writer with Wired, and deputy editor at The Verge. He owns all the phones.

After a year and a half of living and working through a pandemic, it's no surprise that employees are sending out stress signals at record rates. According to a 2021 study by Indeed, 52% of employees today say they feel burnt out. Over half of employees report working longer hours, and a quarter say they're unable to unplug from work.

The continued swell of reported burnout is a concerning trend for employers everywhere. Not only does it harm mental health and well-being, but it can also impact absenteeism, employee retention and — between the drain on morale and high turnover — your company culture.

Crisis management is one thing, but how do you permanently lower the temperature so your teams can recover sustainably? Companies around the world are now taking larger steps to curb burnout, with industry leaders like LinkedIn, Hootsuite and Bumble shutting down their offices for a full week to allow all employees extra time off. The CEO of Okta, worried about burnout, asked all employees to email him their vacation plans in 2021.

Keep Reading Show less
Stella Garber
Stella Garber is Trello's Head of Marketing. Stella has led Marketing at Trello for the last seven years from early stage startup all the way through its acquisition by Atlassian in 2017 and beyond. Stella was an early champion of remote work, having led remote teams for the last decade plus.

Facebook wants to be like Snapchat

Facebook is looking to make posts disappear, Google wants to make traffic reports more accurate, and more patents from Big Tech.

Facebook has ephemeral posts on its mind.

Image: Protocol

Welcome to another week of Big Tech patents. Google wants to make traffic reports more accurate, Amazon wants to make voice assistants more intelligent, Microsoft wants to make scheduling meetings more convenient, and a ton more.

As always, remember that the big tech companies file all kinds of crazy patents for things, and though most never amount to anything, some end up defining the future

Keep Reading Show less
Karyne Levy

Karyne Levy ( @karynelevy) is the West Coast editor at Protocol. Before joining Protocol, Karyne was a senior producer at Scribd, helping to create the original content program. Prior to that she was an assigning editor at NerdWallet, a senior tech editor at Business Insider, and the assistant managing editor at CNET, where she also hosted Rumor Has It for CNET TV. She lives outside San Francisco with her wife, son and lots of pets.

Protocol | China

China’s edtech crackdown isn’t what you think. Here’s why.

It's part of an attempt to fix education inequality and address a looming demographic crisis.

In the past decade, China's private tutoring market has expanded rapidly as it's been digitized and bolstered by capital.

Photo: Getty Images

Beijing's strike against the private tutoring and ed tech industry has rattled the market and led observers to try to answer one big question: What is Beijing trying to achieve?

Sweeping policy guidelines issued by the Central Committee of the Chinese Communist Party on July 24 and the State Council now mandate that existing private tutoring companies register as nonprofit organizations. Extracurricular tutoring companies will be banned from going public. Online tutoring agencies will be subject to regulatory approval.

Keep Reading Show less
Shen Lu

Shen Lu is a reporter with Protocol | China. She has spent six years covering China from inside and outside its borders. Previously, she was a fellow at Asia Society's ChinaFile and a Beijing-based producer for CNN. Her writing has appeared in Foreign Policy, The New York Times and POLITICO, among other publications. Shen Lu is a founding member of Chinese Storytellers, a community serving and elevating Chinese professionals in the global media industry.

It’s soul-destroying and it uses DRM, therefore Peloton is tech

"I mean, the pedals go around if you turn off all the tech, but Peloton isn't selling a pedaling product."

Is this tech? Or is it just a bike with a screen?

Image: Peloton and Protocol

One of the breakout hits from the pandemic, besides Taylor Swift's "Folklore," has been Peloton. With upwards of 5.4 million members as of March and nearly $1.3 billion in revenue that quarter, a lot of people are turning in their gym memberships for a bike or a treadmill and a slick-looking app.

But here at Protocol, it's that slick-looking app, plus all the tech that goes into it, that matters. And that's where things got really heated during our chat this week. Is Peloton tech? Or is it just a bike with a giant tablet on it? Can all bikes be tech with a little elbow grease?

Keep Reading Show less
Karyne Levy

Karyne Levy ( @karynelevy) is the West Coast editor at Protocol. Before joining Protocol, Karyne was a senior producer at Scribd, helping to create the original content program. Prior to that she was an assigning editor at NerdWallet, a senior tech editor at Business Insider, and the assistant managing editor at CNET, where she also hosted Rumor Has It for CNET TV. She lives outside San Francisco with her wife, son and lots of pets.

Latest Stories