Two Different Proposals to Amend Section 230 Share A Similar Goal: Damage Online Users’ Speech

Whether we know it or not, all Internet users rely on multiple online services to connect, engage, and express themselves online. That means we also rely on 47 U.S.C. § 230 (“Section 230”), which provides important legal protections when platforms offer their services to the public and when they moderate the content that relies on those services, from the proverbial cat video to an incendiary blog post.

Section 230 is an essential legal pillar for online speech. And when powerful people don’t like that speech, or the platforms that host it, the provision becomes a scapegoat for just about every tech-related problem. Over the past few years, those attacks have accelerated; on Wednesday, we saw two of the most dangerous proposals yet, one from the Department of Justice, and the other from Sen. Josh Hawley

The proposals take different approaches, but they both seek to create new legal regimes that will allow public officials or private individuals to bury platforms in litigation simply because they do not like how those platforms offer their services. Basic activities like offering encryption, or editing, removing, or otherwise moderating users’ content could lead to years of legal costs and liability risk. That’s bad for platforms—and for the rest of us.

DOJ’s Proposal Attacks Encryption and Would Make Everyone’s Internet Experience Less Secure

The Department of Justice’s Section 230 proposal harms Internet users and gives the Attorney General more weapons to retaliate against online services he dislikes. It proposes four categories of reform to Section 230.

First, it claims that platforms need greater incentive to remove illegal user-generated content and proposes that Section 230 should not apply to what it calls “Bad Samaritans.” Platforms that knowingly host illegal material or content that a court has ruled is illegal would lose protections from civil liability, including for hosting material depicting terrorism or cyber-stalking. The proposal also mirrors the EARN IT Act by attacking encryption: it conditions 230 immunity on whether the service maintains “the ability to assist government authorities to obtain content (i.e., evidence) in a comprehensible, readable, and usable format pursuant to court authorization (or any other lawful basis).”

Second, it would allow it and other federal agencies to initiate civil enforcement actions against online services that they believed were hosting illegal content.

Third, the proposal seeks to “clarify that federal antitrust claims are not covered by Section 230 immunity.”

Finally, the proposal eliminates key language from Section 230 that gives online services the discretion to remove content they deem to be objectionable and defines the statute’s “good faith” standard to require platforms to explain all of their decisions to moderate users’ content.

The DOJ’s proposal would eviscerate Section 230’s protections and, much like the EARN IT Act introduced earlier this year, is a direct attack on encryption. Like EARN IT, the DOJ’s proposal does not use the word encryption anywhere. But in practice the proposal ensures that any platform providing secure end-to-end encryption would face a torrent of litigation—surely no accident given the Attorney General’s repeated efforts to outlaw encryption.

Other aspects of the DOJ’s “Bad Samaritan” proposals are problematic, too. Although the proposal claims that bad actors would be limited to platforms that knowingly host illegal material online, the proposal targets other content that may be offensive but is nonetheless protected by the Constitution.

Additionally, requiring platforms to take down content deemed illegal via a court order will result in a significant increase in frivolous litigation about content that people simply don’t like. Many individuals already seek to use default court judgments and other mechanisms as a means to remove things from the Internet. The DOJ proposal requires platforms to honor even the most t