AG William Barr Attacks Section 230... Even Though It Doesn't Hinder The DOJ At All

from the what-a-weird-speech dept

I know that it's become hip and cool for folks in Washington DC to attack Section 230 lately. This is true on both sides of the traditional political aisle, as hating on 230 is a sort of wink-and-a-nod gesture that means "I, too, hate big tech." This is the case, even though the reasons given for ripping apart 230 are often self-contradictory or simply wrong. None of that matters. All that matters is showing the world that you are part of the "anti-big tech tribe." The latest to join? Attorney General William Barr. In a speech to the National Association of Attorneys General, Barr devoted some time to hating on 230.

First he talks about antitrust as an approach to going after "free digital services" which he seems to think are inherently some sort of problem. It's notable, of course, that the former General Counsel of Verizon doesn't ever mention any antitrust concerns about, say, Verizon and AT&T -- companies that have a literal monopoly over access for broadband for many people. But, instead, focuses on various edge services. Then, he talks about the need to go "beyond" antitrust, and jumps straight to Section 230 as a tool for limiting the big internet companies.

One example of a non-antitrust issue related to online platforms is Section 230 of the Communications Decency Act. Generally speaking, Section 230 provides immunity to interactive computer services for third-party content on their platforms.

Of course, Barr leaves out a pretty important point here: Section 230 does not provide immunity to those sites from any federal criminal statute (i.e., the very laws the DOJ enforces). Of course, what he's really doing is playing up to the NAAG. Various state AGs have been agitating to dump Section 230 for the better part of a decade. The issue is that while it does not immunize sites from federal criminal law, it does do so for state laws -- meaning that state AGs have to resort to elaborate grandstanding to attack tech companies to get headlines, rather than actually suing.

So, to some extent, this is Barr playing up to his audience, and agreeing with their desire to upend or ditch entirely Section 230. But the fact that he seems to pretend that it also applies to federal criminal law is a pretty big omission.

As this group well knows, there is currently a robust public debate over Section 230. The NAAG sent a letter to Congress last May, proposing an amendment that would carve out U.S. state and territorial criminal law from the current scope of Section 230 immunity. We, too, are studying Section 230 and its scope.

Yeah, but most of that "robust public debate over Section 230" is utter nonsense. Not mentioning that federal criminal statutes are not immune under Section 230 is a perfect example of why the debate is so silly. It lets people pretend that the law allows blatant lawlessness, when it does not.

Also left out of the discussion is that Section 230 is really about the proper placement of liability. For all the talk of "immunity," that "immunity" is not to make it so there is no remedy for illegal activity. It's to make sure that the liability is placed on the party who actually violated the law -- not the service provider they used to do so. This is a fundamental aspect of Section 230, which Barr conveniently ignores.

Instead of talking about the proper placement of liability, Barr focuses in on the claim that 230 was designed solely as a sort of special gift for a nascent internet industry, and ponders if this kind of "special" treatment is still needed:

Section 230 was passed at a time where the internet was relatively new, and Congress wanted to protect the growth of online services and the ability for the internet to offer “a forum for true diversity of political discourse.”

Even more bizarre, he then seems to indicate that he disagrees with the court that recently dismissed the first of many silly lawsuits that tried to hold Facebook and Twitter liable for terrorist attacks, because some terrorists (not even those responsible for the attacks or murders in question) were able to use those platforms. Those cases were the definition of bad cases. And yet Barr seems upset that 230 was used to stop them:

The staggering breadth of Section 230 immunity, as construed by the courts, is evident in a recent Second Circuit opinion involving the Anti-Terrorism Act. See Force v. Facebook, Inc., 934 F.3d 53 (2nd Cir. 2019). There, the court held that Facebook was immune under Section 230 for allegedly matching and facilitating communications between members of the terrorist group Hamas. The court denied plaintiff’s argument that Facebook’s algorithms and friend-matching service rendered it a “non-publisher” outside the scope of Section 230. Id. at 66. Chief Judge Katzmann dissented in part, criticizing the virtually limitless scope of Section 230 immunity imposed by some courts. He argued that providing immunity for the steps Facebook took to connect alleged terrorists through algorithm and friend suggestions was far removed from the original purpose of the CDA to protect children against obscene material online. He called for Congress to revisit the CDA to “better calibrate the circumstances where such immunization is appropriate and inappropriate in light of congressional purposes.” Id. at 77. Chief Judge Katzmann is not alone in his calls for reform. Section 230 has garnered significant attention from experts, consumer groups, and legislators.

Once again, Barr seems to be ignoring two critical elements. The first, again, is that the DOJ is still totally free to go after Facebook if it believes this activity violated federal law. That it has not done so is telling. He's using this example for show -- not because he thinks an injustice has been left unjust.

From there he notes that this case and others like it have forced the DOJ to "think critically' about Section 230:

The purpose of Section 230 was to protect the “good Samaritan” interactive computer service that takes affirmative steps to police its own platform for unlawful or harmful content. Granting broad immunity to platforms that take no efforts to mitigate unlawful behavior or, worse, that purposefully blind themselves — and law enforcers — to illegal conduct occurring on, or facilitated by, the online spaces they create, is not consistent with that purpose.

Again, this is not the purpose of 230. The purpose was to properly apply liability. The good Samaritan part is part of the how and was in direct response to a faulty application of liability in the Stratton Oakmont case. And removing Section 230 or making companies more liable for failing to moderate their platforms literally removes their incentives to "mitigate unlawful behavior." Because the most widely accepted standard pre-CDA 230 was that sites had to have knowledge to become liable. Thus, removing 230 creates more incentive for sites to stop looking, to stop mitigating, and to let everything flow.

Also, it's notable that Barr's comments here seem to be the flip side of what most of his Republican colleagues seem to be saying about 230 these days -- in which they insist (without credible evidence) that the sites are deliberately stifling the speech of conservatives. That's why you have folks like Senator Josh Hawley proposing bills that would make it much riskier to do any moderation whatsoever -- which, of course, would go exactly against Barr's claims here.

It's not as if they have a coherent argument here beyond "big tech is bad, big tech likes Section 230, therefore Section 230 must also be bad."

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Filed Under: attorney general, attorneys general, doj, intermediary liability, section 230, william bar