US government wants to protect sites that use encryption less in lawsuits

The US Department of Justice has released plans to reform social media laws. Among other things, the government wants to adjust certain immunity clauses in the legislation, so that ‘malicious websites’ are less protected.

The US Department of Justice has identified four categories in which section 230 of the Communications Decency Act of 1996 the government believes should be amended. These four categories are about encouraging platforms to take down illegal content, and making it easier for the federal government to take action against this illegal content. The categories are also about stimulating competition and promoting debate and transparency.

In order to encourage platforms to remove illegal content, the ministry wants to make certain forms of legal immunity impossible through a legislative amendment. Now tech companies can rely on the law to avoid liability for content on their platform. The ministry wants this to become impossible for companies that ‘consciously facilitate or request illegal content’.

The ministry also wants sites to no longer be able to claim that immunity if they specifically facilitate or request content with child exploitation, sexual abuse, terrorism or cyberstalking. This immunity should also no longer apply to platforms that have ‘factual knowledge or information’ that they facilitate illegal content.

Encryption Ban

Furthermore, this amendment will make it more difficult for companies that “consciously blind themselves and investigative services to illegal material” to invoke the immunity principle of Section 230. According to the plans, it is “not logical” to apply immunity to a platform that knowingly designs or offers its services in such a way that the platform cannot identify criminal behavior.

Previously, companies could claim this immunity through a so-called ‘Good Samaritan’ clause. “A Good Samaritan is not someone who buries his or her head in the sand, or worse, blinds others who want to help,” the plans read.

The DoJ therefore proposes that internet platforms must ensure that they can always identify illegal content or behavior if they are to claim the immunity principles under Section 230. These immunity principles protect a company from the content that other users post on the platform.

Although the word encryption is not mentioned literally, it is likely that it refers to that. Attorney General William Barr has been complaining for years about the rise of encryption and the problems it poses to police investigations.

Malicious Information

This legislation prevents a site from being sued if it turns out that a user, for example, knowingly posted harmful information on a site. The ministry itself gives the example of a user who writes on a review platform that the soup at a restaurant was cold. The restaurant could see this as defamation and sue the review platform for it. Without the principle of immunity, a website could more quickly apply censorship to avoid such defamation lawsuits, the plans say.

Finally, the government wants to ‘clarify’ that when tech companies receive an antitrust claim from the US government, they cannot invoke the immunity principle of section 230. According to the government, such antitrust lawsuits do not concern the judgments of third parties, but about competition. Therefore, according to the government, it would “not make sense” for social media to claim an immunity principle, which was not designed for such antitrust claims.

Previously, sources from The Wall Street Journal reported that the Department of Justice was preparing an antitrust investigation that would target Google. According to Bloomberg, this investigation has already started. CNBC writes that the ministry wants this lawsuit to take place this summer. Presumably, the government already wants to prevent Google from invoking section 230 by changing the law.

It was already clear that the US government was working on legislation that dictates how social media should moderate. The plans now have to be considered by the US Congress.