Attorney General William Barr took aim Wednesday at a key legal protection for the tech industry, calling into question whether it is still needed as a small number of key tech players have reached a massive size and scale.
Besides questions of anticompetitive behavior, Barr said at a Department of Justice workshop, the agency is considering what a concentrated tech market means for a legal immunity originally created to help small start-ups thrive.
Barr convened the workshop to discuss Section 230 of the Communications Decency Act, which says tech companies cannot be held legally liable for content posted by third-party users. The law protects online platforms from being treated as publishers, which can be held legally liable for publishing misleading or harmful content, even if they choose to moderate or remove objectionable content from their platforms.
The law has been massively important in allowing some of the biggest tech firms, including Facebook and Google, to grow while maintaining community standards on their platforms and without becoming buried by lawsuits. Tech executives argue that the law is still integral to their work, especially in allowing for "good faith" content moderation.
But at the workshop, Barr said the industry Section 230 protects is no longer a fragile, emerging sector.
"No longer are technology companies the underdog upstarts," Barr said. "They have become titans of U.S. industry."
With that scale of power, Barr said, "valid questions have been raised as to whether Section 230's broad immunity is still needed."
Those questions emerged from the DOJ's broad review of market-leading online platforms, Barr said. The Antitrust Division has been probing Google and has jurisdiction to probe Apple, as reported by various outlets. Barr described the review of Section 230 as part of a "holistic approach" to the tech industry that recognizes "not all of the concerns raised about online platforms squarely fall within antitrust."
Still, the concentration of tech markets could complicate the importance of Section 230 since a small number of key players control a wide range of discourse, according to Barr. In the mid-1990s when the law was enacted, tech platforms hosted public bulletin boards, but today, they engage much more actively in serving content to users through algorithms and other mechanisms, Barr said.
"With these new tools, the line between passively hosting third-party speech and actively curating and promoting speech starts to blur," Barr said.
While the department is "concerned about the expansive reach of Section 230 immunity" following the "broad interpretation" by the courts, Barr said he did not yet want to make a decision on Section 230. He said he hopes to consider how to align the incentives of private sector companies with the value of public safety.
"Law enforcement cannot delegate our obligations to protect the safety of the American people purely to the judgment of profit-seeking private firms," Barr said. "We must shape the incentives for companies to create a safer environment, which is what Section 230 was originally intended to do."