Silicon Valley faces bipartisan and legal attacks

The Communications Decency Act came under renewed assault Wednesday, with U.S. Attorney General William P. Barr recommending legislation to weaken Section 230(c), the provision of the 1996 law that holds internet companies immune from liability for user posts, photos and videos.

On the day before, a federal lawsuit by four black plaintiffs challenged Section 230(c), claiming Alphabet Inc.-owned YouTube and other powerful Silicon Valley technology companies "use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints."

The proposed class action, filed in San Jose, is the latest lawsuit against YouTube by organizations and individuals on the left and the right. Newman et al. v. Google LLC, 20-CV04011 (N.D. Cal., filed June 16, 2020).

Courts have consistently upheld Section 230, but the statute faces a series of legal and legislative challenges made all the more daunting because major changes are favored both by President Donald Trump and his presumptive Democratic opponent, former Vice President Joe Biden.

Trump issued an executive order last month attempting to curb some of Section 230's protections, and Barr followed up with Wednesday's legislative proposal to update the law.

"We must shape the incentives for companies to create a safer environment, which is what Section 230 was originally intended to do," Barr said in a statement. "These twin objectives of giving online platforms the freedom to grow and innovate while encouraging them to moderate content responsibly were the core objectives of Section 230 at the outset."

Barr's proposed legislation would have to be approved by Congress, which might be difficult during an election year in the midst of a pandemic and nationwide protests over police killings of black men.

But even if legislation doesn't pass this year, the president in 2021 is already on record as opposing Section 230 no matter who wins. Biden said the statute "should be revoked, immediately" in a January interview with the New York Times, a position his campaign reiterated even while opposing Trump's executive order.

Trump signed the executive order after getting into a tiff with San Francisco-based Twitter Inc., which attached two fact-checking labels last month to two of the president's tweets. Conservatives argue their viewpoints are censored by technology companies.

Biden and Democrats are no happier with Facebook Inc., the Menlo Park-based social media giant that has refused to remove posts by Trump even if they are false. ""We need a fairness doctrine for the internet in the 21st century," U.S. Rep. Ro Khanna, D-Santa Clara, told Politico. "The FCC should make sure that aggrieved parties have the right to reply and that blatant falsity is not protected."

Eric Goldman, a Santa Clara University School of Law professor who follows Section 230 cases closely and is a staunch defender of the law, said Barr has taken a "surgical approach" to attacking Section 230 and that Congress will take it seriously despite partisan tensions because both parties dislike the law as it currently stands even if their gripes with it are different.

"There aren't too many people who are anti-censorship now," he said Wednesday in a telphone interview.

The latest putative class action against YouTube accuses the company of using algorithms and other machine-based filtering tools in a way that discriminates against African American users by, among other things, wrongly removing videos if they have titles that include, for example, "Black Lives Matter" and "Police Brutality."

It's the latest complaint filed by Peter Obstler, a partner with Browne George Ross LLP against YouTube. He also has represented conservative Prager University and a group of LGBTQ and African American content creators.

In February, a 9th U.S. Circuit Court of Appeals panel upheld a ruling by U.S. District Judge Lucy H. Koh rejecting Prager University's federal lawsuit alleging First Amendment violations. U.S. Magistrate Judge Virginia K. DeMarchi of San Jose considered oral arguments in the second case, which Obstler said could be related to the Newman case. Divino Group LLC et al. v. Google LLC et al., 19-CV04749 (N.D. Cal., filed Aug. 13, 2019).

"Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike," Obstler wrote in the new complaint.

An Alphabet spokesperson said Wednesday the company was reviewing the lawsuit.