AG Barr Takes Aim at Legal Shield Enjoyed by Google, Facebook

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Attorney General Bill Barr is taking on the social media giants using the legal argument in our 2016 lawsuit challenging section 230 of the FEC code granting 1st amendment immunity to Facebook, Twitter, and YouTube. My legal team the American Freedom Law Center (AFLC) filed a federal lawsuit in the U.S. District Court for the District of Columbia on July 13, 2016, challenging Section 230 of the Communications Decency Act (CDA) under the First Amendment. “Section 230 provides immunity from lawsuits to Facebook, Twitter, and YouTube, thereby permitting these social media giants to engage in government-sanctioned censorship and discriminatory business practices free from legal challenge.” The lawsuit was brought on behalf of the American Freedom Defense Initiative (AFDI), Pamela Geller, Robert Spencer, and Jihad Watch.

While we may have not prevailed in court — lack of standing — we clearly made an impact.

Pamela Geller: Why I Am Suing Facebook

Attorney General Bill Barr is taking aim at a legal shield enjoyed by companies such as Alphabet Inc.’s Google and Facebook Inc. as the provision comes under increasing fire from both liberals and conservatives.

Barr has accused social media companies of hiding behind a clause that gives them immunity from lawsuits while their platforms carry material that promotes illicit and immoral conduct and suppresses conservative opinions.

The attorney general convened a workshop Wednesday, featuring many of the tech companies’ critics, to explore potential changes to Section 230 of the Communications Decency Act, which was passed in 1996 and has been credited with allowing the then-fledgling internet to flourish.

“The Justice Department is concerned about the expansive reach of Section 230, but we’re not here to advocate for a position,” Barr said in his opening remarks. “Rather, we are here to convene a discussion to help us examine 230 and its impact in greater detail.”

Barr said 230 liability is relevant to the Justice Department’s ability to “combat lawless spaces online.” He could instruct his Justice Department to explore ways to limit the provision, which protects internet companies from liability for user-generated content.

The technology platforms warn that any changes in their legal shield could fundamentally alter their business models and force them to review every post, making it impossible for all but the biggest companies to operate.

Barr and lawmakers from both political parties have blamed Section 230’s sweeping legal protections for allowing what they see as irresponsible behavior by the big technology companies.

“We are concerned that internet services, under the guise of Section 230, can not only block access to law enforcement — even when officials have secured a court-authorized warrant — but also prevent victims from civil recovery,” Barr said. “Giving broad immunity to platforms that purposefully blind themselves — and law enforcers — to illegal conduct on their services does not create incentives to make the online world safer for children.”

FBI Director Christopher Wray also addressed the workshop, along with a range of lawyers, academics, child advocates, tech critics, and trade groups. Some of the speakers, such as a representative from the National Center for Missing and Exploited Children, have expressed concerns about how the law is currently written, or called for changes.

Others argue that the law should be left alone, including the Computer & Communications Industry Association, a tech trade group that counts Google and Facebook as members. The Justice Department also plans to host private listening sessions.

Representatives from Google (GOOGL) and Facebook (FB) didn’t respond to questions about whether they’d received invitations. A spokeswoman for Twitter Inc. (TWTR) declined to comment.

Liberal groups say internet platforms don’t do enough to stop the spread of hate speech or police political disinformation from foreign and domestic operatives. Conservatives say the tech companies censor right-wing viewpoints.

Both groups seek changes to the shield that would increase companies’ liability as a solution. Lawmakers and tech policy experts from both sides of the aisle worry about children’s safety online as well as drug sales, harassment and stalking, among other issues.

“A lot of people are angry for different reasons at the large platforms,” said Jeff Kosseff, a professor at the U.S. Naval Academy who has written a history of the law and is also scheduled to address the workshop. “Section 230 is a pretty attractive proxy for that anger.”

While the Justice Department can make recommendations, only Congress can change the law. Some legal experts say they are perplexed by the department’s role in the Section 230 debate, which doesn’t tie the government’s hands in prosecuting violations of criminal law.

“DOJ is in a weird position to be convening a roundtable on a topic that isn’t in their wheelhouse,” said Eric Goldman, a professor at Santa Clara University School of Law and longtime defender of Section 230, who is also set to speak.

Lawmakers are exploring an array of possible changes to the law, looking to use it to make companies police content in a politically “neutral” manner, rein in use of the shield by short-term home-rental companies or protect voters from misinformation. Democratic presidential hopefuls including former Vice President Joe Biden have weighed in with calls to repeal or change the law.

When it comes to cases where online material exploits children, a draft bill from Republican Senator Lindsey Graham of South Carolina, a top Trump ally, would only allow the companies to keep the liability shield if they follow a set of best practices. For example, they would be required to report and delete the material, but also preserve it for law enforcement. Critics worry that the measure would also undermine encrypted communications because encoded platforms can’t see what material the law would prompt them to report.

In 2018, in the first successful effort to chip away at the shield, Congress eliminated the liability protection for companies that knowingly facilitate online sex trafficking.

The critics propose a range of changes — from raising the bar on which companies can have the shield, to carving out other laws, to repealing Section 230 entirely. Uniting them, however, is the belief that the provision enables an online environment rife with political misinformation, drug dealing, child abuse and other ills.

Technology companies counter that Section 230 allows social media startups to flourish because they don’t have to monitor postings and protects free speech. It also fosters their efforts to remove offensive content because the law allows them to take down material without facing penalties.

“Section 230 encourages services to fight misconduct and protect users from online harms by removing disincentives to moderate abusive behavior,” Matt Schruers, the president of the Computer & Communications Industry Association, said in an excerpt from his prepared remarks.

David Chavern, president of the News Media Alliance, a trade group representing publishers, doesn’t favor repealing the law but proposes “limiting the exemption for just the very largest companies, who both derive the most benefits from Section 230 and have the greatest capacities to take legal responsibility,” according to a copy of his remarks obtained by Bloomberg.

Chavern’s group blames the advertising practices of Google and Facebook for the decline of journalism and advocates for policies to rebalance the relationship.

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