First Trump DOJ Assembled “Tiger Team” To Rewrite Key Law Protecting Online Speech

As President Donald Trump issued an Executive Order in 2020 to retaliate against online services that fact-checked him, a team within the Department of Justice (DOJ) was finalizing a proposal to substantially weaken a key law that protects internet users’ speech.

Documents released to EFF as part of a Freedom of Information Act (FOIA) suit reveal that the DOJ officials—a self-described “Tiger Team”—were caught off guard by Trump’s retaliatory effort, which was aimed at the same online social services they wanted to regulate further by amending 47 U.S.C. § 230 (Section 230).

Section 230 protects users’ online speech by protecting the online intermediaries we all rely on to communicate on blogs, social media platforms, and educational and cultural platforms like Wikipedia and the Internet Archive. Section 230 embodies that principle that we should all be responsible for our own actions and statements online, but generally not those of others. The law prevents most civil suits against users or services that are based on what others say.

The correspondence among DOJ officials shows that the group delayed unveiling the agency’s official plans to amend Section 230 in light of Trump’s executive order, which was challenged on First Amendment grounds and later rescinded by President Joe Biden. EFF represented the groups who challenged Trump’s Executive Order and filed two FOIA suits for records about the administration’s implementation of the order.

In the most recent FOIA case, the DOJ has been slowly releasing records detailing its work to propose amendments to Section 230, which predated Trump’s Executive Order. The DOJ released the text of its proposed amendments to Section 230 in September 2020, and the proposal would have substantially narrowed the law’s protections.

For example, the DOJ’s proposal would have allowed federal civil suits and state and federal criminal prosecutions against online services if they learned that users’ content broke the law. It also would have established notice-and-takedown liability for user-generated content that was deemed to be illegal. Together, these provisions would likely result in online services screening and removing a host of legal content, based on a fear that any questionable material might trigger liability later.

The DOJ’s proposal had a distinct emphasis on imposing liability on services should they have hosted illegal content posted by their users. That focus was likely the result of the team DOJ assembled to work on the proposal, which included officials from the agency’s cybercrime division and the FBI.

The documents also show that DOJ officials met with attorneys who brought lawsuits against online services to get their perspective on Section 230. This is not surprising, as the DOJ had been meeting with multiple groups throughout 2020 while it prepared a report about Section 230.

EFF’s FOIA suit is ongoing, as the DOJ has said that it still has thousands of potential pages to review and possibly release. Although these documents reflect DOJ’s activity from Trump’s first term, they are increasingly relevant as the administration appoints officials who have previously threatened online intermediaries for exercising their own First Amendment rights. EFF will continue to publish all documents released in this FOIA suit and push back on attempts to undermine internet users’ rights to speak online.