Justice Department to defend tech protections Biden denounced

The Justice Department plans to defend a controversial legal protection for tech companies, Section 230 of the Communications Decency Act, despite the fact that President Joe Biden said as a candidate last year the provision should be eliminated.

Justice Department lawyers notified a federal judge in San Francisco on Thursday that they plan to weigh in to defend the law in one of three lawsuits former President Donald Trump filed in July, accusing major internet companies of effectively acting as government agents to censor the speech of conservatives online.

“The United States hereby intervenes in this action for the limited purpose of defending the constitutionality of Section 230(c) of the Communications Decency Act of 1996,” government attorneys wrote in the Trump suit targeting Twitter.

Solicitor General Elizabeth Prelogar was confirmed and sworn in last month, but the three-page filing says the feds’ “limited” intervention in the Trump suit was approved by the acting solicitor general.

Similar notices are expected in the two other suits Trump has filed: one against Facebook and another against Google.

A Justice Department spokesperson confirmed on Thursday night that Prelogar is recused from the case, but did not offer details.

Prelogar‘s former law firm, Cooley LLP, represents numerous tech clients, including Twitter. An ethics agreement Prelogar signed in connection with her nomination includes a pledge not to take part in matters involving firm clients for at least a year after her departure from Cooley.

Section 230 has been at the heart of U.S. internet policy for more than two decades, allowing online services to police social media posts without assuming liability for their content. However, in recent years, activists and lawmakers on the right and the left have urged reforms to the law.

Biden jumped on that bandwagon during his presidential campaign, declaring in January 2020 that the provision should be repealed. His remarks seemed to evince particular hostility to the policies of Facebook and its founder, Mark Zuckerberg.

“Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” Biden said then. “It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.”

Trump brought each of the suits in federal court in southern Florida. However, the internet companies invoked provisions in their terms of service requiring suits to be filed in Northern California, where the firms are based. Judges have ordered that the suits against Twitter and Google’s YouTube service be transferred to California. The motion to move the suit against Facebook is still pending in federal court in Miami.

The Justice Department generally defends federal statutes, but on rare occasions declines to do so and is required to notify Congress when that happens.

Last year, the Justice Department made a similar move to defend Section 230 in two civil suits filed against Google, a Justice spokesperson noted.

Leah Nylen contributed to this report.