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Justice Department recommends new legislation holding Facebook, Google and Twitter liable for some online content

For months, Attorney General William P. Barr had teased the recommendations. (Saul Loeb/AFP/Getty Images)

The Justice Department on Wednesday urged Congress to adopt new legislation that could punish Facebook, Google and Twitter for a wide array of harmful content posted online, threatening to erode a long-cherished legal immunity that Silicon Valley says is critical to the future of the Internet.

The new legislation would target Section 230, a decades-old portion of law that spares social media sites from being held liable for the posts, photos and videos uploaded to their sites by their users. The proposal would pave the way for steep sanctions on major online platforms if they don’t act to remove a range of illicit content, from child exploitation to terrorism, according to Justice Department officials, who spoke on the condition of anonymity Wednesday.

The agency also seeks to force tech giants to be more transparent about their content-moderation decisions and more consistent in their enforcement of them, according to a report the department released Wednesday. The move might offer the U.S. government a new avenue to probe and punish companies over allegations of political bias.

And the new proposal further raises the possibility that tech companies could lose their legal protections if their security practices, including their use of end-to-end encryption, hamstring law enforcement. Such technology allows only the sender and recipient of a message to view a conversation’s content. Tech giants, including Facebook, increasingly have adopted encryption to protect users’ privacy, especially in messaging apps, but Justice Department officials say the technology allows harmful content to evade detection.

For months, Attorney General William P. Barr had teased such recommendations, questioning whether Section 230 had spared “titans” in the tech industry from accountability for their misdeeds. But the department’s efforts took on new urgency this month after President Trump signed an executive order that seeks to introduce more government oversight of political speech on the Web.

Trump issued his highly controversial directive out of concern that Facebook, Google and major social media sites are systematically censoring conservatives, a charge that each of those tech giants long has denied. The resulting debate has triggered a groundswell of concern that the White House, Justice Department and other government agencies are pursuing policies that could ultimately threaten free expression online.

Spokesmen for Facebook, Google and Twitter declined to comment. The Internet Association, a Washington-based trade group representing those companies and other online services, sharply rebuked the Justice Department for its proposal.

“Rolling back Section 230 protections will make it harder, not easier, for online platforms to make their platforms safe," Jon Berroya, interim president of the group, said in a statement. "The threat of litigation for every content moderation decision would hamper IA member companies’ ability to set and enforce community guidelines and quickly respond to new challenges in order to make their services safe, enjoyable places for Americans.”

The Justice Department proposal illustrates Washington’s fast-growing, wide-ranging apprehensions about the way Silicon Valley conducts business. Federal regulators in recent years have become more attuned to the dangers posed by large technology companies, including the ways that social media sites can be weaponized to spread harmful, false content at scale.

The agency embarked on its broad review of Big Tech beginning last year, an inquiry that has also included antitrust issues at a time when the government is preparing to file a lawsuit against Google on competition grounds, The Washington Post previously has reported. In hearing from tech companies and critics alike, the Justice Department quickly determined the industry had outpaced one of its own foundational laws.

“The time has therefore come to realign the scope of Section 230 with the realities of the modern internet so that it continues to foster innovation and free speech but also provides stronger incentives for online platforms to address illicit material on their services,” the department said in a report issued Wednesday.

With Section 230, however, the agency’s proposal rests entirely in the hands of Congress, where the Trump administration’s actions targeting the tech industry at times have invited more skepticism than support — even among lawmakers who share a belief that Silicon Valley should be more aggressively regulated.

On one hand, Democrats and Republicans alike have found rare accord in attacking Section 230, fearing the decades-old legal shield has outlived its usefulness. Congress adopted the 1990s-era law to spare Internet companies in their infancy from a raft of lawsuits they never would have survived. But the rules now protect some of the most profitable companies in the world from being held liable for some of their missteps, including their failures to crack down on political falsehoods, election disinformation and hate speech.

Such concerns led lawmakers from both parties to unveil a bill that could strip Section 230 protections from companies that fail to crack down on child sexual exploitation online. But their loose consensus on the need for reform often has broken down because of politics, as Trump and his Republican allies allege Facebook, Google and Twitter unfairly target their enforcement actions against right-leaning users and websites. Democrats see the allegations as an attempt to score preferential treatment online in the heat of an election year.

“I’ve certainly been one of Congress’ loudest critics of Section 230, but I have no interest in being an agent of Bill Barr’s speech police," said Democratic Sen. Richard Blumenthal (Conn.), one of the authors of bipartisan legislation to reform the law, in a statement Wednesday. “I’m deeply concerned that President Trump and Attorney General Barr are exploiting Big Tech’s complicity in human misery to advance their own political agenda.”

Trump lashes out at social media companies after Twitter labels tweets with fact checks

Adding to the tensions, Trump signed an executive order this month that could open the door for the U.S. government to assume oversight of political speech on the Web. The president issued the directive days after Twitter took the rare step of labeling one of his tweets as violating its policies.

Lawmakers, conservative advocacy groups, free-speech experts and tech giants blasted Trump for the order, and an organization backed by Facebook and Twitter soon challenged it in federal court as a violation of the First Amendment.

Some Republicans, in contrast, have championed Trump’s action and in recent days have sought to further needle the industry. A new bill sponsored by Sen. Josh Hawley (R-Mo.) would open the door for Web users to sue Facebook, Google and Twitter for wrongly taking down their content online, the senator announced Wednesday.