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."

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


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  • icon
    That One Guy (profile), 18 Dec 2019 @ 3:32am

    When all you have is dishonesty...

    I find it telling that, as far as I can tell, every argument against 230 is based around dishonesty and/or strawman versions of it. If the person arguing against it isn't lying about what it actually says they're mischaracterizing it by describing it as doing something it doesn't, and/or trying to frame it as this amazing privilege rather than simply granting online platforms the same protections against liability that offline platforms enjoy.

    If you have to lie to make your argument I'd say that's a pretty open admission that even you know it's a bad one.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 18 Dec 2019 @ 4:46am

      Re: When all you have is dishonesty...

      "I find it telling that, as far as I can tell, every argument against 230 is based around dishonesty and/or strawman versions of it."

      ...and the same people who viciously go after section 230 are, more often than not the same people who go after personal privacy, good jurisprudens, and copyright infringement, real or perceived.

      And with the same tactics at that. Blatant lying, not a single fact, and with an argument aggressively peddled in a pompous "Either you're with us or you are against life on earth in general!" fashion of hyperbole.

      I'm thinking the big battle we have today the one carried against free speech, opinions, and mass communication. It would be nice if we could blame some global conspiracy for it rather than just a herd of shady organizations and individuals who happen to share the common denominator that they really dislike it when people communicate freely because that threatens their personal interests...

      reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 18 Dec 2019 @ 3:33am

    So he's targeting the same tech companies with his CDA 230 attack that he is targeting with his going dark anti-encryption attacks?

    "Nice website you got there...be a shame if anything happened to it."

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 18 Dec 2019 @ 5:42am

      Consider the man for whom Barr works. Is it any surprise, then, that Barr acts like a mafia caporegime?

      reply to this | link to this | view in chronology ]

      • icon
        Norahc (profile), 18 Dec 2019 @ 5:55am

        Re:

        Only thing they're missing is having a middle name of "The"

        reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 18 Dec 2019 @ 7:28am

        Re:

        He wasn't any different when he was working for HW. He was a thug long before Trump had political aspirations, but it's that thuggery that made him appealing to Trump.

        Ken White said something on last week's All the President's Lawyers to the effect of "I never thought I'd miss Jeff Sessions." As usual, Ken has a point.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 4:04am

    Section 230 provides immunity to interactive computer services for third-party content on their platforms.

    Just like the DOJ has immunity against claims that they failed to stop criminals..

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Dec 2019 @ 6:21am

      Re: I dont think so Tim

      Comparing third party liability to incompetence?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Dec 2019 @ 3:33pm

      Re:

      More directly, regarding the terrorism angle: Who has largely created and/or funded in the past, and then lost control; or inspired people to become, through their egregious actions, terrorists or rogue governments? There's some liability right there, buddy, and far more than stupid Facebook could ever hope to own.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 4:34am

    Just like the DOJ has immunity against claims that they failed to stop criminals..

    One could make the argument they actually encourage criminal behaviour, as long as the criminal weara a badge.

    reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 18 Dec 2019 @ 6:00am

    Elect a clown, expect the circus.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 18 Dec 2019 @ 6:38am

    John Smith's been spending a lot of time on his knees, hasn't he?

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 18 Dec 2019 @ 6:46am

    Shhhh, don't talk, don't think, just listen

    Well, we know that Barr is trying to censor something, the question is what is he trying to censor? If he gets his way and Section 230 is dismantled, then the places where free speech is currently being expressed will either drastically impair that free speech, or quit allowing speech altogether (which would kind of eliminate one of the major reasons for their existence).

    One the of principles of authoritarian governments is that communication goes from the government to the people, and not the other way around. So, at least in Barr's mind, this is just another step in quieting dissent, keeping the people in their places, and giving the government more authority to be authoritarian. Dismantling those pesky big tech companies who have too much money, and therefore too much power, is just a side bonus. Though targeting them acts as cover for his real intent.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 7:07am

    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.

    Barr, unsurprisingly, isn't up on his case history. Platforms that did nothing to moderate content already had immunity before 230 even existed, thanks to Cubby v. CompuServe.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 7:10am

    I like how they call it immunity when it really is about placing the blame where it belongs.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 12:25pm

    Take heed

    It’s alright mr Barr.

    There are plenty of lawyers that aren’t good at what they do either.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2019 @ 9:32pm

    I find it telling that, as far as I can tell, every argument against 230 is based around dishonesty and/or strawman versions of it. If the person arguing against it isn't lying about what it actually says they're mischaracterizing it by describing it as doing something it doesn't, and/or trying to frame it as this amazing privilege rather than simply granting online platforms the same protections against liability that offline platforms enjoy.

    230 does not protect offline speech.

    Offline publishers are liable as distributors.

    The immunity is definitely a privilege, and one court even said 230 doesn't apply when competitors are involved.

    reply to this | link to this | view in chronology ]


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