On May 14, 2021, President Biden issued an executive order revoking, among other things, his predecessor’s action (Executive Order 13295 of May 28, 2020) that directed the executive branch to clarify certain provisions under Section 230 of the Communications Decency Act (“Section 230” or the “CDA”) and remedy what former President Trump had claimed was the social media platforms’ “selective censorship” of user content and the “flagging” of content that does not violate a provider’s terms of service. The now-revoked executive order had, among other things, directed the Commerce Department to petition for rulemaking with the FCC to clarify certain aspect of CDA immunity for online providers (the FCC invited public input on the topic, but did not ultimately move forward with a proposed rulemaking) and requested the DOJ to draft proposed legislation curtailing the protections under the CDA (the DOJ submitted a reform proposal to Congress last October).

Putting aside any discussion of the legal efficacy of President Trump’s executive order, it did reinforce the status of CDA reform as a forefront policy debate in Congress.  There are a handful of CDA reform bills being considered at the committee level in the current legislative session and more in the discussion draft or other stage of introduction – though, to be sure, other legislative items are, for now, taking center stage in Congress.

President Biden’s latest action essentially offers a clean slate for both parties and the White House to discuss reforms anew. Even though there appears to be an appetite for CDA reform and some consensus on the need to reexamine the CDA in light of the new digital age, the parties diverge greatly in the reasons and focus of such reform, making any potential reform likely to be incremental, rather than a wholesale rewrite of Section 230.  We will continue to follow these developments as there is a lot at stake when it comes to any changes to the protections under the CDA.

For a more detailed overview of the status of CDA Reform, please see the recording of our webinar on this topic, “Section 230 Today and Tomorrow: What Bipartisan Efforts to Amend the CDA Could Mean for Businesses” [registration required].

Photo of Jeffrey Neuburger Jeffrey Neuburger

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise…

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law discipline, Jeff continues to lead on a range of business-critical transactions involving the use of emerging technology and distribution methods. For example, Jeff has become one of the foremost private practice lawyers in the country for the implementation of blockchain-based technology solutions, helping clients in a wide variety of industries capture the business opportunities presented by the rapid evolution of blockchain. He is a member of the New York State Bar Association’s Task Force on Emerging Digital Finance and Currency.

Jeff counsels on a variety of e-commerce, social media and advertising matters; represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements; advises on the implementation of biometric technology; and represents clients on a wide range of data aggregation, privacy and data security matters. In addition, Jeff assists clients on a wide range of issues related to intellectual property and publishing matters in the context of both technology-based applications and traditional media.