Internet referral programs are in urgent need of reform

The US District Court for the Western District of Louisiana barred certain government agencies from working with social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” The injunction seems to threaten the myriad of government programs—including those in the Department of Homeland Security, the Department of Justice, the Department of Health and Human Services, and the State Department—that seek to work with social media platforms to fulfill their missions including assuring election integrity and safety. These operations function as internet referral programs, as they are called in many other countries where they exist, since they ask the companies to assess whether certain material on their systems is harmful or illegal. They can easily turn from conveying valuable information to social media companies to coercion. Some of the examples described in the court’s ruling appear to verge on intimidation, as when a government official’s call for certain content to be removed was accompanied by comments about antitrust action or initiatives to reform Section 230, a law that grants social media companies the legal immunity for the material posted by their users. These internet referral programs, while valuable, lack an adequate system of procedural protections. Article V of the European Union’s draft Regulation on Terrorist Content provides a guide for a regulated and transparent system of internet referral programs. It would have required platforms to assess on a priority basis referral from competent national authorities concerning terrorist material on their platforms. The executive branch, Congress and social media companies should move ahead expeditiously in this reform effort.

[Mark MacCarthy is a Nonresident Senior Fellow in Governance Studies at the Center for Technology Innovation at Brookings.]