Section 230 Faces Threat as Justice Department Proposes Rollbacks

WASHINGTON, D.C.—The law that has protected online free speech for nearly a quarter century—Section 230 of the 1996 Communications Decency Act—has come under attack on three fronts this year. The latest came this week, when United States Attorney General William Barr proposed a detailed set of new rules for online platforms that would drastically limit speech protections—and could lead to severe limitations on sexual content, especially. Section 230 shields platforms—such as social media sites, message boards, and even internet service providers—from legal liability for content created by third parties. Due to the law’s protections, platforms are freed from the insurmountable task of policing every piece of content that appears on their sites.  Without Section 230 protections, those platforms would be likely to simply impose wide bans on entire categories of content—similar to the way Tumblr banned adult content in late 2018, just months after the passage of the anti-sex trafficking law FOSTA/SESTA. FOSTA/SESTA, passed by Congress in April 2018, took away Section 230 protections for content that could be broadly construed as promoting sex trafficking. The new limits outlined by Barr’s Justice Department on Wednesday go further, requiring platforms such as Facebook, Google and Twitter to “address the growing amount of illicit content online.”  The Justice Department would also remove protections for platforms that facilitate “child exploitation and sexual abuse, terrorism or cyberstalking.” But how those terms would be defined remains unclear. As with FOSTA-SESTA, which defined “sex trafficking” so vaguely that it could encompass most sexual content, broad interpretations of “sexual abuse” could even cover mainstream porn. At least 15 states have already declared porn a “public health hazard.”  The proposed Justice Department rollbacks to Section 230 come about three weeks after Donald Trump signed an executive order that would create a wide-ranging program to “monitor” social media users and even create a “watch list” of users based on their “likes,” “follows” and other behaviors online. At the same time, the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act which has received bipartisan support in Congress would refigure Section 230 to take away the law’s protections but allow online companes to “earn” those protections back by following “best practices related to identifying and reporting online child sexual exploitation.” Advocacy groups have already warned that EARN IT could lead to increased surveillance and arrests of sex workers.  Photo By Shane T. McCoy, U.S. Marshals Office of Public Affairs / Wikimedia Commons