United States Attorney General ("AG") William P. Barr highlighted ongoing enforcement challenges resulting from immunity provisions under Section 230 of the Communications Decency Act that protect internet service providers ("ISPs") and other entities from legal liability for the content of online speech.
In remarks before a Justice Department Workshop, AG Barr questioned whether Section 230's broad immunity should be amended to limit protections for ISPs, which in his words have gone from "underdog upstarts" to "titans of industry" with respect to their sophistication and reach. AG Barr stated that the advent of algorithms and recommendation features have blurred the line between "passively hosting third-party" speech and "actively curating or promoting speech." Additionally, bad actors have abused Section 230's immunity, according to AG Barr, by, among other things, "providing platforms for the theft of intellectual property, permitting communications among criminals and terrorists, and facilitating child sexual exploitation.
Although AG Barr did not go so far as to advocate a specific position on behalf of the Justice Department, he urged the workshop participants to consider (i) how civil tort law may be used to complement federal law enforcement efforts, (ii) whether companies should be allowed to assert Section 203 immunity in actions brought by the federal government on behalf of consumers, and (iii) how law enforcement investigations or civil recovery may be blocked by Section 230 immunity.
Commentary Joseph Moreno
Section 230 has been a vital contributor to the exponential growth of companies such as Facebook and Google, protecting them from the types of lawsuits that publishers are typically exposed to. As companies have gone from startups to massive enterprises with multiple business lines that reach into the lives of consumers, their continued shielding from liability has become harder to justify. While AG Barr stopped short of calling for a significant walkback of the law, his comments made clear he views "lawless spaces" on the internet to be insufficiently policed in this respect, with ISPs and other data hosts prioritizing profits over public safety.
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