Revise Section 230, DAG Rosen Tells FSF, Listing Criteria
Section 230 of the Communications and Decency Act may need to be revisited, suggested Deputy Attorney General Jeffrey Rosen. A quarter century after enactment, 230 immunity "has not always been a force for good, particularly in light of some of the extraordinarily broad interpretation given to it by some courts," DAG Rosen told a Free State Foundation conference Tuesday. He listed some criteria to consider in such revamp efforts.
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Child predators, terrorists and extreme harassment are examples of what should fall outside its protection. Rosen would like to see further engagement, such as excluding immunity for websites that purposefully enable illegality or harm to children. He also wants to discuss whether the section should be allowable as a defense in federal civil enforcement actions. It shouldn't be used as "all-purpose immunity for claims that are far removed from speech," Rosen said, including as an excuse to circumvent city ordinances on licensing of rental properties.
Those facing FTC civil actions have tried to use 230 as a defense, said General Counsel Alden Abbott. When the agency acted against a deceptive website that sold weight loss products and lied about the efficacy of their products, the commission told the company it couldn't use 230 as a defense. "You're responsible for your own deceptive practices, so you're not covered," he said.
The Good Samaritan provision shouldn't be interpreted to give online platforms unlimited cover for removing content from others, DOJ's Rosen said. He said DOJ is "concerned about the extent to which platforms have expanded the use of Section 230 to immunize taking down content beyond the types listed in the statute. Under the Good Samaritan provision, platforms have the ability to remove content that they have a 'good faith' belief is 'obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.' We are told that some platforms treat this provision as a blank check, ignoring the 'good faith' requirement and relying on the broad term 'otherwise objectionable' as carte blanche to selectively remove anything from websites for other reasons and still claim immunity."
The FTC wants to be enforcer of any new legislation on data and privacy, Commissioner Christine Wilson said. The agency would take a harm-focused, risk-based approach, she said. She favors civil monetary penalties for violations.
"Going online should not be a scary or confusing place for us or our children," said Deborah Lathen, Multicultural Media, Telecom & Internet Council board member. She's concerned about the level of surveillance that minority communities face and how sharing such data with law enforcement can put communities of color at risk. "Facial recognition doesn’t always work with people of my hue," she responded to our question from the audience. Lathen isn't optimistic this Congress will pass online data protection laws.
AT&T interim Senior Executive Vice President-External and Legislative Affairs Jim Cicconi has seen efforts to pull such legislation together. "I continue to believe there's a pony in there somewhere," he said. He's unsure whether something will happen this year, or whether action will be taken "to build consensus for the next Congress." One reason Congress must address data protection is California didn't get it right with its privacy law because that mandate bases enforcement on the sale of consumer data, yet larger platforms "don't need to sell information because they control it end to end," Cicconi said. That gives big players a competitive advantage, he said.
On spectrum, Cicconi said it's harder to do resolve complicated issues with NTIA's revolving door. And panelists discussing the need for licensed and unlicensed spectrum said it shouldn't be an either/or. Mary Brown, Cisco senior director-technology and spectrum policy, said Wi-Fi will be necessary to support advances in broadband technology. New Wi-Fi spectrum is needed to keep up with future fiber networks with 10G speeds, for example. Otherwise, Brown said, "Wi-Fi could become a choke point."