Remarks as Prepared for Delivery
Thank you, Director Wray, for that introduction and thanks for hosting us for today’s workshop on Section 230 of the Communications Decency Act.
Section 230 is a topic that has garnered significant attention over the past year, and we are pleased to have so many experts and thought leaders on our panels and in the audience here today.
The Department of Justice’s interest in Section 230 arose in the course of our broader review of market-leading online platforms, which we announced last summer. While our efforts to ensure competitive markets through antitrust enforcement and policy are critical, we recognize that not all the concerns raised about online platforms squarely fall within antitrust. Because the concerns raised about online platforms are often complex and multi-dimensional, we are taking a holistic approach in considering how the department should act in protecting our citizens and society in this sphere.
A driving motivation behind our broader perspective, including Section 230, is the need for the department’s enforcement efforts to keep up with rapidly changing technological landscape around us. Technological change over the past few decades has led to groundbreaking innovations and tremendous benefits to the economy and to consumers. At the same time, criminals and bad actors now use technology to facilitate and expand the scope of their wrongdoing and the victimization of our fellow citizens. The department has a responsibility to keep up with changes in technology to protect citizens from new harms, while at the same time preserving benefits.
The Internet has evolved significantly since Section 230 was enacted in 1996. At that time, almost 25 years ago, immunity was seen as vital to protecting new technology in its incipiency. Today, online platforms have become essential to Americans’ daily lives, often serving as the primary conduit for how we receive and share information. No longer are tech companies the underdog upstarts; they have become titans of US industry. Given this changing technological landscape, valid questions have been raised on whether Section 230’s broad immunity is still necessary, at least in its current form.
The increased size and power of online platforms has also left consumers with fewer options. The lack of feasible alternatives is relevant in the Section 230 discussion – both for those citizens who want safer online spaces and for those whose speech has been banned or restricted by these platforms. In enacting Section 230, Congress noted that the Internet offers a “forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”
Over time, however, the avenues for sharing information and engaging in discourse have concentrated in the hands of a few key players. Further, the big tech platforms of today often monetize through targeted advertising and related businesses, rather than charging users. Thus, their financial incentives in content distribution may not always align with what is best for the user. While the department’s antitrust review is looking at these developments from a competition perspective, we must also recognize what this concentration means for Section 230 immunity.
The online platforms have changed not only in size, but also in substance. The early days of online public bulletin boards, like AOL, have been replaced by platforms with sophisticated content moderation tools, algorithms, recommendation features, and targeting. With these new tools, the line between passively hosting third-party speech and actively curating or promoting speech starts to blur. What these changes mean for the scope of Section 230 immunity is another important issue to consider.
Technology has changed in ways that no one, including the drafters of Section 230, could have imagined. These changes have been accompanied by an expansive interpretation of Section 230 by the courts, seemingly stretching beyond the statute’s text and original purpose. For example, defamation is Section 230’s paradigmatic application, but Section 230 immunity has been extended to a host of additional conduct — from selling illegal or faulty products to connecting terrorists to facilitating child exploitation. Online services also have invoked immunity even where they solicited or encouraged unlawful conduct, shared in illegal proceeds, or helped perpetrators hide from law enforcement.
The courts’ broad interpretation of Section 230 also occurs against the background of the Supreme Court, in 1997, striking down every other provision of the CDA on First Amendment grounds. This left in place an unbalanced statutory regime that preserves technology providers’ liability protections, without guaranteeing corresponding protections for minors from harmful material on the Internet.
The Department of Justice is concerned about the expansive reach of Section 230, but we are not here to advocate for a position. Rather, we are here to convene a discussion to help us examine Section 230 and its impact in further detail. As we consider these issues, however, I would like to make a few preliminary observations.
First, civil tort law can act as an important complement to our law enforcement efforts. Federal criminal prosecution is a powerful, but necessarily limited tool that addresses only the most serious conduct. The threat of civil liability, however, can create industry-wide pressure and incentives to promote safer environments. In fact, Congress has enacted civil laws specifically to supplement criminal enforcement. For example, the Anti-Terrorism Act provides civil redress for victims of terrorist attacks on top of the criminal terrorism laws, yet judicial construction of Section 230 has severely diminished the reach of this civil tool. Civil liability can work hand-in-hand with the department’s law enforcement efforts to promote a safer environment, both online and in the physical world.
Second, broad Section 230 immunity can pose challenges for the department and other federal agencies in certain civil enforcement matters. Actions brought in the public interest by the federal government do not raise the same concerns of mass liability for private speech torts that were at the core of Congress’s concerns when it enacted Section 230. It is questionable whether Section 230 was intended to allow companies to invoke the statute’s immunity against the federal government acting to protect American citizens.
Finally, and importantly, Section 230 immunity is relevant to our efforts to combat lawless spaces online. We are concerned that internet services, under the guise of Section 230, can not only block access to law enforcement — even when officials have secured a court-authorized warrant — but also prevent victims from civil recovery. This would leave victims of child exploitation, terrorism, human trafficking, and other predatory conduct without any legal recourse. Giving broad immunity to platforms that purposefully blind themselves – and law enforcers – to illegal conduct on their services does not create incentives to make the online world safer for children. In fact, it may do just the opposite.
In addressing the myriad online harms today, we must remember that the goal of firms is to maximize profit, while the mission of government is to protect American citizens and society. Sometimes private incentives will create an optimal solution, such as the free market’s ability to determine the best price for a given product. When it comes to issues of public safety, the government is the one who must act on behalf of society at large. Law enforcement cannot delegate our obligations to protect the safety of the American people purely to the judgment of profit-seeking private firms. We must shape the incentives for companies to create a safer environment, which is what Section 230 was originally intended to do. The question for us, and for this Workshop, is whether those incentives are working or whether they need to be recalibrated.
These are just a few perspectives as we get started, but the goal for the department today is to listen. The concerns regarding Section 230 are many and not all the same. We must also recognize the benefits that Section 230 and technology have brought to our society, and ensure that the proposed cure is not worse than the disease. The debate, however, is important. To that end, we have brought together a diverse set of perspectives in both our panels and in our audience today. We look forward to the discussion today, and to continuing the conversation.
The year 2020 marks the 150th anniversary of the Department of Justice. Learn more about the history of our agency at www.Justice.gov/Celebrating150Years.