Barr threatens tech’s prized legal shield

Attorney General William Barr is threatening the legal shield that prevents internet companies such as Facebook and Google from facing lawsuits over the extreme, exploitative and sometimes violent posts that circulate on their powerful platforms. 

At a Department of Justice (DOJ) workshop devoted to the issue Wednesday, Barr warned that the largest technology firms have hidden behind the 1996 statute to avoid responsibility for “selling illegal and faulty products, connecting terrorists [and] facilitating child sexual exploitation.” 

Barr’s comments bolstered the DOJ’s escalating battle against Big Tech. Law enforcement officials have accused the tech titans of obstructing criminal investigations and amassing too much power over the past decade. The DOJ is currently investigating the largest tech firms for antitrust concerns – and Barr said the department’s interest in Section 230 grew out of that probe. 

“Online services … have evoked [legal] immunity even where they solicited or encouraged unlawful conduct, shared in illegal proceeds or helped perpetrators hide from law enforcement,” Barr said, placing blame both on the law — Section 230 of the Communications Decency Act — as well as the courts, which have interpreted it broadly in the more than 20 years since it was passed.

Barr delivered the broadside at a DOJ conference about Section 230 that featured some of the law’s most aggressive proponents and detractors. The workshop’s trio of panels featured civil rights activists who argued the law goes too far in protecting the tech companies, lawyers who have represented those companies in court, and experts who have spent years sifting through the law’s far-reaching implications and agree that legislative tweaks are inevitable.

The conference comes amid a broader effort by the Trump administration and Congress to take aim at Section 230, a controversial statute that has been lauded for empowering the modern internet and blamed for enabling the overwhelming amount of harmful content that can be found online. 

The law shields tech companies, including Facebook as well as smaller companies such as Yelp, from assuming legal liability for content posted by their users. It also empowers the companies to make their own decisions about which pieces of content to take down — for instance, the law protects YouTube from facing legal repercussions for taking down a terrorist recruitment video.  

The attorney general, who has taken aim at Section 230 in public remarks before, clarified that the DOJ is not ready to “advocate a position yet.” But he warned that the internet platforms lack oversight and, as private companies, are driven by the incentive to make the most money possible.   

“In addressing the myriad of online harms today we must remember: The goal of firms is to maximize profit while the mission of the government is to protect American citizens and society,” he said. 

“Sometimes, private incentives will create an optimal solution,” Barr, a former Verizon lawyer, said. But he added that he believes “law enforcement cannot delegate our obligations to protect the safety of the American people purely for the judgement of profit-seeking private firms.”

“We must shape the incentives for companies to create a safer environment,” he said.

The day was marked by sometimes-tense exchanges over how much responsibility the tech companies should assume over the most abhorrent crimes that happen on their platforms with millions and sometimes billions of users, including the proliferation of images of children being sexually exploited. 

Yiota Souras, the general counsel of the National Center for Missing and Exploited Children, said it’s “terrifying” to think that the largest platforms are removing those images of children on a “voluntary” basis. 

Currently, two key lawmakers, Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) and panel member Sen. Richard Blumenthal (D-Conn.), are working up legislation that would create a government commission responsible for drafting rules around curbing online child sexual exploitation, which the tech companies would have to follow in order to qualify for Section 230 immunity. 

The proposal earned several mentions throughout the day.

Matt Schruers, the president of top tech trade group the Computer and Communications Industry Association, argued that Section 230 offers necessary protections as the companies work to remove that sort of harmful content from their platforms.

“More can and should be done here, both in terms industry and government,” Schruers conceded. He noted that there have been many instances when internet platforms have referred criminal activity to law enforcement — only for those leads to go nowhere. 

The day was cluttered with suggestions around how to amend Section 230 without fundamentally upending the internet. At one point, Nebraska Attorney General Doug Peterson said the law should give more power to the states to take action against tech companies and the bad actors that use them.

“We’ll clean up your industry instead of waiting for your industry to clean up itself,” Peterson told Schruers to chuckles from the audience.

At other points, experts suggested offering strengthened legal tools for victims who have been harmed or tweaking certain parts of the law. 

Jeff Kosseff, a top expert in the field who wrote the book “The Twenty-Six Words That Created the Internet” about the law, said he believes it’s almost inevitable that there will be some changes to Section 230. 

FBI Director Christopher Wray, who made a brief appearance at the beginning of the workshop, said the law “leaves vital public safety questions in the hands of private corporations.” 

“Those of us in government and law enforcement, [the] victim’s advocacy community and [the] tech industry have the combined power, the ability and the skill, to tackle the challenges that evolving technology presents,” Wray said.