The Supreme Court has scheduled oral arguments on what tech companies are billing as their version of a challenge to “must-carry” laws, statutes that they say are unconstitutional threats to their First Amendment freedom.

The high court’s decision could determine the future of social media and other edge providers to moderate their content.

The court has scheduled combined oral argument for February 26 on Moody v. Netchoice (and CCIA) and Netchoice (and CCIA) v. Paxton. Those are legal challenges to similar Republican-backed Texas and Florida laws that would require websites to carry third-party content whether or not they wanted to.

The Texas law, which passed a Republican-controlled legislature in 2022, “prohibits an interactive computer service from censoring a user, a user’s expression, or a user's ability to receive the expression of another person based on ... the viewpoint of the user or another person.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable-use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports and to have a complaint system in place.

The Florida law, which was also passed by a Republican majority legislature, limits websites’ immunity from civil liability over third-party content under Section 230 of the Communications Decency Act of 1996. It removes that civil-liability protection for Big Tech platforms like Facebook or Twitter, including allowing for monetary damages up to $250,000 per day for deplatforming political candidates for statewide office,and $25,000 per day for candidates for nonstatewide offices.

The laws are in part a response to Republican claims that edge providers have been censoring conservative speech.

In response to the high court’s announcement of the oral argument calendar, the Computer & Communications Industry Association (CCIA), said that the challenged statutes “would force digital service providers to publish all third-party content, without editorial discretion, or face onerous regulatory burdens. These ‘must-carry’ laws violate the First Amendment by stripping private companies of their right to curate, organize, and display online content.”

Also Read: Court Says Texas Content Moderation Law Can Go Into Effect

If that argument sounds familiar, it was the one cable operators made to the court in Turner v. FCC, the 1994 court challenge to the FCC’s pay TV must-carry rules, which require cable operators to carry broadcast TV stations in their market whether or not they want to give up valuable channel space.

Cable operators said pay TV must-carry was an unconstitutional taking of their channel property, as well as government-compelled speech that undercut their editorial independence.

Also Read: Big Tech Says Texas Law is Big Mistake

CCIA branded the state laws as “must carry” even though the Supreme Court in Turner held that forced carriage passes constitutional muster if it furthers an important government interest and is narrowly tailored.

“The Constitution’s free speech right protects the editorial discretion of websites and digital services from government intervention,” CCIA president Matt Schruers said. ”Content moderation is not only an essential trust and safety function, it is a First Amendment-protected activity. After years of litigation, CCIA looks forward to having our constitutional challenges heard in the Supreme Court.”

The Biden administration still wants the freedom to regulate social media platforms, just not in the way Florida and Texas laws are doing it.

The Justice Department, by way of Solicitor General Elizabeth Prelogar, filed a brief this week with the Supreme Court asking it to hear an appeal of a suit against state laws that dictate how platforms can moderate certain content and that require them to explain to users how they are moderating it.

The brief asserts that prohibiting Facebook or Twitter from removing or banning some content violates the First Amendment rights of those social-media outlets, which Prelogar says have such speech protection.

Just as a newspaper opinion page aggregates outside content, and is protected by the First Amendment, so, too is social media's content moderation.

"When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment," Prelogar wrote.

But the protection is not absolute, she told the court. "That activity, and the platforms’ business practices more generally, are not immune from regulation,” the brief said. “But here, the States have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny."

President Joe Biden is on the record backing reforms, if not elimination, of the protections from civil liability social-media sites enjoy under Section 230 of the Communications Decency Act, and the administration clearly is not opposed to regulations requiring those sites to inform users of how they are making content-moderation decisions.

Ask computer companies and they will tell you that the Supreme Court has just saved the internet and its Section 230 liability shield — “for now.’

The court Thursday ruled that Google had not aided or abetted a 2013 ISIS terrorist attack in Paris because of the perpetrators’ use of YouTube, which Google owns. It specifically shot down the allegation, upheld by the 9th U.S. Circuit Court of Appeals, that Google was liable because it approved of ISIS videos for advertising and then shared the proceeds with the group.

The terrorist attacks in Paris killed 130 people, including Nohemi Gonzalez, a U. S. citizen (the case was Gonzalez et al. v. Google).

The 9th Circuit had found that Section 230 of the Communications Decency Act did not bar the liability claims, but the Supreme Court said it would not even consider the Section 230 claim because there seemed to be no plausible case for relief.

Section 230 is the provision of the law providing online platforms with immunity from civil liability for any third-party content that is posted, and affords them with immunity for removing content in some circumstances. 

“Despite demands from critics, the Supreme Court rightly decided to allow Section 230 of the Communications Decency Act to remain in place,” said the Information Technology and Information Foundation. “Internet users across America, whose free speech and favorite online services were imperiled, can now let out a collective sigh of relief. Section 230 provides the foundation for the modern internet by ensuring neither businesses nor consumers are held liable for the speech of others.”

The “for now” caveat is that Congress is still gunning for Section 230. Some legislators on both sides of the aisle see it as giving Big Tech a “get out of responsibly moderating content free” card.

ITIF said maybe this decision and a similar one involving Twitter would send a signal that gutting the section is not in the public's or businesses’ interests.

Citing some of the Justices in the recently argued Gonzalez v. Google, Sen. Richard Blumenthal (D-Conn.), chair of the Senate Judiciary Committee’s Privacy Subcommittee, said that there appears to be an “emerging consensus” that Congress has to do something about what he called an outdated construct that has led to toxic, algorithm-driven content.

He expressed that view in his opening remarks in a hearing on Big Tech and Section 230 prompted by the U.S. Supreme Court oral argument in the case, which revolved around whether social media can be held liable for abetting terrorist speech.

Blumenthal was not sounding much like a Democrat when it came to the argument for a neutral internet, though he was talking about edge providers, not internet service providers. “I think that the time when the internet could be regarded as a kind of neutral, or passive, conduit is long since passed,’ he said.

Gonzalez v. Google revolves around the issue of whether social-media platforms could be held legally liable for aiding and abetting terrorism. The 9th U.S. Circuit Court of Appeals concluded that Section 230 — the provision of the Communications Decency Act of 1996 immunizing social media from civil liability in most cases — generally bars such aiding and abetting claims.

Also: Big Tech Battles Threat to Content Moderation

But with regard to a different complaint, the same court concluded that Google, as well as Twitter and Facebook, could be liable for aiding and abetting terrorism.

The justices seemed to suggest Congress needed to step in to decide what Section 230 should mean in a post-algorithm world — the statute dates from 1996 — given the implications for the operation of the internet if sites began being held liable for suggestions, recommendations or “next ups” under the plaintiff’s argument.

They clearly appeared uncomfortable with trying to set the precedent of what kind of content online platforms should be liable for, with Justice Elana Kagan suggesting that they were not the nine most internet-savvy people around.

"Fifteen years ago, when I was [Connecticut] attorney general dealing with MySpace and Craigslist and many the same issues that we’re confronting today, I said to my staff, ‘We should repeal Section 230,’ ”Blumenthal said. “And they came down on me like a house of bricks and said, ‘Whoa, you can’t repeal Section 230, that’s the Bible of the internet!’ Well, it’s not the Bible of the internet, it’s not the Ten Commandments that have been handed down. It is a construct that is now outdated and outmoded and needs reform.”

Big Tech has been pushing back hard on efforts to reform the section, saying it threatens their business model and would lead to more, not less, censorship — including self-censorship by platforms as a form of self-protection. Tech firms have even been trying to play into Republican fears of censorship of conservative speech.

In a sign of the bipartisan nature of the Section 230 reform movement, Sen. Josh Hawley (R-Mo.), pretty much the political polar opposite of Blumenthal, got a shout-out from the chairman for his work on the issue. In turn, Hawley said the slow progress of possible reform was as much, or perhaps even more, the fault of Republicans as Democrats.

Hawley said the time has come to give parents and kids the basic right to hold Big Tech legally liable for content on their sites.

Protecting ‘Defective Products’

Sen. Amy Klobuchar (D-Minn.) said social-media platforms had for too long been protected by Section 230 from being designed in a way that produced “dangerous and defective products.”

Blumenthal said Congress should make clear what is going on: Big Tech is making big bucks by driving more eyeballs to content the harms of which they are aware. He said they may not want to promote that content, but know that repeating and amplifying it is addicting kids to that content, and with “certain consequences.”

Andrew Sullivan, president of the Internet Society, stood up for Section 230 in his hearing testimony. He said that there was potential to do a lot of harm to the internet by targeting that provision. 

“The broad protections that Section 230 affords are essential for — in the words of that statute — [the] ‘interactivity’ [of] the Internet,” he told the senators. “Simply stated, without the basic protections that Section 230 provides, we would not have the robust engagement of hundreds of millions of Americans in the online conversation, nor would we have the astounding innovation in online services that we have witnessed over the past 25 years.”

But Blumenthal said in closing there should be no doubt that “change is coming,” and that that should be the takeaway from the hearing. ■

Chicken Little alarms were recently voiced in the U.S. Supreme Court that eliminating or narrowing the immunity from suit social media platforms enjoy for third-party postings under Section 230 of the Communications Decency Act would cause the sky to fall on their operations. Based on oral arguments held on February 21 and 22, the twin cases, Gonzalez v. Google and Twitter v. Taamneh, are likely to leave the blanket immunity for social media behemoths completely or virtually undisturbed. 

What’s wrong with this picture?

I am a small business owner of broadcast properties valued at a miniscule fraction of Google’s $1.16 trillion current capitalization or Twitter’s $41 billion. Yet I have no liability immunity for defamations broadcast on my programs or properties. Ditto for newspapers or other social-media competitors. We buy libel insurance. Why can’t Google and Twitter do the same? Why should these giants be given a leg up under Section 230? Isn’t that like giving Secretariat a head start over competitors at the Kentucky Derby in 1973?

Section 230 was passed in 1996 when social media was in its infancy. It was speculated that without legal immunity from defamation, invasion of privacy, or related tort claims for third-party postings on their digital platforms, social media companies would capsize into bankruptcy.  But no proof or logic was forthcoming. It was a postulate without proof either then or in the ensuing 27 years.

The relevant text reads as follows:

“No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.”

In contrast, newspapers, broadcasters, cable companies and satellite transmitters are subject to liability for content provided by third parties. But the law, liability insurance and the practicalities of litigation provide formidable defenses that adequately protect against adverse judgments or insolvency leaving a wide margin for free speech. None of these industries have become insolvent from tort liability.

The Supreme Court in New York Times v. Sullivan (1964) and its progeny has erected virtually insurmountable First Amendment barriers to successfully suing public officials or public figures for defamation, invasion of privacy or similar speech. A plaintiff must shoulder the burden of proving, by clear and convincing evidence, that the defendant published a false statement of fact with knowledge of its falsity or with reckless disregard of whether it was true or not. Opinions are completely off-limits. And simple negligence in publishing a falsehood does not trigger liability. The defendant must be shown to have entertained a conscious awareness that the allegedly offensive publication contained a defamatory fact.

Moreover, defamation damages must be proven. But loss of reputation characteristically finds expression in business that never surfaces. Proving such a negative is commonly insurmountable.

Even more important, plaintiffs are ordinarily reluctant to sue to avoid providing a free and ruinous judicial platform for further distribution of the defamatory falsehood. Defamation suits are customarily costly and lengthy because proving the state of mind of the publisher and the reputation of the plaintiff is complex. A plaintiff’s entire life, warts, skeletons and all, are fair game in discovery. Unless you’re a saint, a defamation lawsuit may further ruin your brand. Thus, President Franklin Roosevelt persuaded his chief emissary Harry Hopkins to refrain from suing the Chicago Tribune for a story likening him to Rasputin, villainous courier to Tsar Nicholas and Tsarina Alexandra. 

It is unsurprising that successful defamation or invasion of privacy suits against traditional media are extremely rare, like unicorns. Even a wealthy plaintiff like Sarah Palin was crushed in her defamation suit against The New York Times in Palin v. New York Times Company (2020).

Even before the constitutional protections of New York Times v. Sullivan and its progeny were inaugurated, tort liability judgments against traditional media were few and far between. Take investigative journalist Drew Pearson, whose “The Washington Merry-Go-Round” appeared daily from 1932 to 1969. He won 119 of 120 libel cases. None deterred his muckraking columns as chronicled in Donald Ritchey’s Leaks, Lies, and Libel in Drew Pearson’s Washington.

Repeal of Section 230 would still leave social media platforms with the thick layers of constitutional protections enjoyed by traditional media that have safeguarded free speech, viewpoint diversity, and aggressive scrutiny of government. Even if the section was plausibly justified at birth 27 years ago because social media was embryonic, it is as obsolete today as the horse and buggy. Repeal will not cause the sky to fall. It would create an even playing field with social media giants still inheriting a competitive advantage from the twenty-seven years of liability immunity they have already enjoyed under section 230. I would wager that if the section were repealed, the impact on the stock prices of Twitter, Facebook and Google or their parent companies would be tiny. To believe otherwise is to believe Chicken Little. ■

The Supreme Court has officially weighed into the white-hot debate over how much Section 230 liability protection the law provides Big Tech for its online content organization and moderation efforts, and — if the justices’ questions are any gauge — that challenge as presented has a high hill to climb.

Those indications came during marathon oral arguments during which the justices appeared either confused by the argument of attorney Eric Schnapper, representing the challengers to Section 230, or unpersuaded by his assertion that social media platforms’ showing of thumbnails of third-party ISIS-related material made them liable for that content.

On Tuesday (February 21), the justices heard oral arguments in the case of Gonzalez v. Google, which deals with whether sites like YouTube (the target of the litigation), Facebook or Twitter could be held liable for aiding and abetting terrorists because of how they provided a platform for their online speech, or whether such liability is barred by Section 230 of the Communications Act, which generally provides social-media platforms immunity from liability for third-party speech posted on their sites.

The issue as specifically presented to the court in Gonzalez is this: “Does section 230(c)(l) immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?”

The justices, conservative and liberal alike, used “let’s say I disagree with you” and “I am confused” a lot in their questioning of Schnapper — not a good sign for the plaintiffs.

The justices also seemed to suggest Congress needed to step in to decide what Section 230 should mean in a post-algorithm world — the statute dates from 1996 — given the implications for the operation of the internet if sites began being held liable for suggestions, recommendations or “next ups” under the plaintiff’s argument.

They clearly appeared uncomfortable with trying to set the precedent of what kind of content online platforms should be liable for, with Justice Elana Kagan suggesting that they were not the nine most internet-savvy people around.

Also: Big Tech Defends Section 230

Justice Neal Gorsuch raised the prospect that the liability shield for a website using neutral tools to provide recommended content, a test suggested by a lower court, might be rendered moot by artificial intelligence (AI), which could arguably be seen as a content creator given what it can now do (write poetry and term papers, for example).

On Wednesday (February 22), the court will also hear a case, Twitter v. Taamneh, involving online terrorist speech. While it does not directly involve Section 230, it could also impact how content can be moderated and potentially how the Gonzalez case will be decided.

Schnapper’s argument, which the justices suggested had morphed somewhat from the case as briefed, was that YouTube thumbnails suggesting ISIS videos to users were not strictly third-party content, but content in which YouTube participated — and that the users had not specifically asked for. Thus, it was not shielded by the law, which protects a social-media platform in its function of supplying an interactive computer service.

That argument landed like a lead balloon with the justices.

The justices asked repeatedly why an algorithm that provided thumbnails of ISIS-related content to users looking for ISIS information was any different from recommending cooking content to folks looking for that, and why that was not a neutral computer service function protected by the statute.

Schnapper said that if YouTube simply provided a series of third-party ISIS videos to that user, that would be protected. But the thumbnails were at least partly YouTube-generated content, which makes it not third party and not protected.

Kagan was concerned that the thumbnail argument would essentially remove the Section 230 protection entirely.

Arguing for YouTube, attorney Lisa Blatt said websites must make choices based on something, but that those choices and recommendations do not constitute aiding and abetting or any conduct that is not protected by Section 230.

She got some tough questions, too, but more in the vein of traditional probing and poking at arguments. For comparison, Schnapper and a Biden administration lawyer who also supported some liability for edge providers were questioned for almost two hours, while the justices were done with Blatt in well under an hour.

Kagan was uncomfortable with Section 230 being taken so far as to protect recommendations of defamatory material, for example, and wondered whether Congress could possibly have meant that protection to be afforded. Justice Ketanji Brown Jackson also questioned whether Congress meant to protect the active promotion of offensive material since the statute provided liability protection for taking down info.

Blatt said that what was offensive to one might not be to another and that the plaintiffs were not arguing that such material should be taken down, but that the problem was with teasing out and recommending information through thumbnails or other means.

She also took issue with the suggestion that algorithms were not in play in 1996, when the statute was passed. She said Congress did know about algorithmic recommendations when it provided Section 230 liability protections.

Blatt pointed out that thumbnails aren't mentioned in the complaint, but that they are embedded third-party speech, not YouTube speech.

One billion hours of video are watched each day on YouTube, she added, so it must be organized somehow.

Also: Court Upholds Edge Protection from Third-Party Liability

The Gonzalez decision will definitely impact how websites do or can do business going forward, and could impact chiefly Republican-controlled state legislatures where content moderation laws cropped up to counter what conservatives has said is a Silicon Valley bias against conservative content.

In 2019, the court declined to hear the appeal of a California Supreme Court decision involving to what degree Section 230 was a shield from liability.

“Section 230 is what allows reputable online sites to respond to bad actors," said Computer & Communications Association president Matt Schruers. CCIA filed a brief with the high court supporting Section 230. “No one wants to see extremist content on digital platforms, and this law Congress enacted is what allows companies to search for and remove dangerous content without the risk that missing a needle in a haystack could lead to bankruptcy.

“If this case alters federal law, companies are likely to respond in one of two ways to protect themselves legally,” Schruers warned. “Companies who could muster the resources would over-moderate everything, while others would throw up their hands and not moderate anything. “Unfortunately, a bad decision from the Supreme Court could drive companies to one of those two extremes in pursuit of legal certainty.”

The Information Technology & Information Foundation was equally alarmed by the prospect of weakening Section 230.

“The Supreme Court’s decision in this case will determine not only the future of Section 230 but the future of the modern Internet,” senior policy analyst Ashley Johnson said. “Significantly weakening Section 230’s liability shield will change the way many online services operate, to the detriment of consumers and free expression online.” ▪️

Everybody’s always talking about Section 230 in Washington but nobody does anything about it. The Supreme Court could change all that.

The high court on Tuesday (February 21) is scheduled to hear oral arguments in the case (cases, actually) of Gonzalez v. Google. They will be the first arguments of the first day of the new court session, with 70 minutes set aside for the proceedings.

Section 230 of the Communications Act gives online platforms immunity from civil suits against most of the third-party content they host, including their decisions on what content to post and how. Online platforms have taken flak from both the right and left for how they do or don't handle that content.

Both Democrats — including President Joe Biden — and Republicans have targeted the section for change or elimination and there has been legislation to that effect. There has also been much talk from the bully pulpits of Capitol Hill hearings on issues such as privacy, hate speech and more that have drawn much criticism of the protection, but so far no action.

The Supreme Court has now agreed to tackle the section over the issue of abetting terrorist speech.

Twitter, along with Google and Facebook, appealed a decision by the 9th U.S. Circuit Court of Appeals that combined the Twitter vs. Taamneh and Google vs. Gonzalez cases int a single decision. That ruling held that in Gonzalez the plaintiffs were barred by Section 230 immunity, but in the Taamneh case it held that, irrespective of Section 230, Twitter — as well as Google and Facebook — could be held liable for aiding and abetting terrorism because they “provided generic, widely available services to billions of users who allegedly included some supporters of ISIS,” as Twitter put it.

The Gonzalez case involved the posting of ISIS recruitment videos.

While the terrorism content is on the extreme end of the debate over content moderation, how the high court decides these cases could bear directly on laws being considered or passed that limit how social media companies can manage content. Those measures are backed by Republicans who have argued that social media platforms censor conservative speech under the misapplied umbrella of weeding out hateful or dangerous speech. ▪️

A group of technology associations has joined forces to tell the Supreme Court that Google and others should have the right to moderate online content. To treat such moderation as an endorsement rather than an organizing function would be a big mistake, they added, because it would strip away the “publisher immunity” that is an essential element of interactive media, including video streaming.

How Big Tech moderates content — and whether the law exempting social-media platforms from civil liability for most third-party content needs to be modified — is a hot-button issue across Washington, from the White House to the Capitol.

The Computer & Communications Industry Association joined with NetChoice, the Digital Media Association, the Information Technology Industry Council, the Interactive Advertising Bureau, and TechNet to file an amicus brief with the court in advance of next month's oral argument in Gonzalez v. Google. The outcome of that case could affect what online users get to see in their video or social media feeds, the groups said.

Also: Supreme Court To Weigh In on Section 230

Gonzalez v. Google revolves around the issue of whether social media platforms could be held legally liable for aiding and abetting terrorism. The 9th U.S. Circuit Court of Appeals concluded that Section 230 — the provision of the Communications Decency Act of 1996 immunizing social media from civil liability in most cases — generally bars such aiding and abetting claims.

But with regard to a different complaint, the same court concluded that Google, as well as Twitter and Facebook, could be liable for aiding and abetting terrorism.

The Supreme Court agreed to step in to resolve that dichotomy, as CCIA and the others would like, in favor of Section 230 immunity, which means upholding the court's decision in Gonzalez that Section 230 immunity protected Google.

The brief argues that the core of what the companies’ digital services do — including advertising and streaming media services — is organizing content for users in a “useful way.”

It is that internet-essential organizational function, a “publisher immunity’ that is central to the benefits of interactive media, that Section 230 protects, the companies told the court.

Tech firms conceded such organization has been a challenge — which may be the understatement of the new year — but to treat that organization as an endorsement of the speech unprotected by Section 230 would render that provision meaningless and “leave many digital services less usable and less useful.”

That argument could fall on some deaf ears in Congress and on Pennsylvania Avenue, where President Joe Biden and some high-profile Democrats have argued for curtailing or eliminating Section 230. But it’s the high court that Big Tech needs to persuade in this instance.

“No one wants to see extremist content on digital platforms — especially the services themselves," CCIA president Matt Schruers said in his group’s defense of Section 230. “The question is how we achieve that. Section 230 is what allows companies to develop systems and processes to remove dangerous content, and any precedent that ties companies’ hands when it comes to protecting users will result in a more dangerous and less trustworthy internet.” ■

President Joe Biden took to the pages of The Wall Street Journal to launch a sweeping attack on Big Tech, saying the government needs to step in.

In his op-ed for the newspaper, the president took aim at “some” Big Tech players — he did not name names — saying they “exploit our most personal data, deepen extremism and polarization in our country, tilt our economy’s playing field, violate the civil rights of women and minorities, and even put our children at risk.”

Biden said social-media companies have to be held accountable "for the experiment they are running on our children for profit.”

His predecessor, Donald Trump, also wanted to crack down on social media and reform Section 230 of the Communications Decency Act, the provision that makes users of social-media platforms immune from civil liability for third-party content, but that was primarily over what he saw as its bias against him and censorship of conservative speech.

Also: Trump Preps Social Media Executive Order

Biden blamed the internet for allowing “abusive and even criminal conduct, like cyberstalking, child sexual exploitation, nonconsensual pornography and sales of dangerous drugs.”

As for their business practices, he said Big Tech had “elbowed mom-and-pop businesses out from their platforms, disadvantaged them, or charged them outlandish prices, making it harder for them to compete and grow, and thereby stifling innovation.”

The president outlined a three-pronged approach to reform: 1) federal privacy protections, including the government preventing some kinds of data collection; 2) reforming Section 230; and 3) preventing Big Tech companies from getting too big.

Biden called for bipartisan congressional action. “It’s time to walk the walk and get something done.”

At least on the issues of federal privacy legislation and Section 230 reform, the president had a supporter in new House Energy & Commerce Committee chair Cathy McMorris Rodgers (R-Wash.), though she suggested a previous executive order on the Big Tech issue was out of bounds.

In a statement responding to Biden’s op-ed, she said: “President Biden is correct to acknowledge the risks posed by Big Tech for Americans. Rather than trying to address these harms unilaterally through executive action and contorting authority, the administration needs to work with Congress to enact comprehensive privacy protections through one national privacy standard that protects all Americans, especially our kids.”

McMorris Rodgers also said she would continue to look for a way to reform Section 230 to “ensure Big Tech is encouraging more free speech on their platforms, not less.” ■

Former President Donald Trump has issued a manifesto against online content moderation, pledging if he is re-elected to try and eliminate efforts to weed out misinformation and disinformation, and support allowing adults (over 18) to opt out of any content moderation of social media platforms whatsoever.

That came in a six-minute video Trump emailed to supporters Friday (December 23).

Trump called it a “plan to shatter the left-wing censorship regime,” which he said was composed of “a sinister group of deep state bureaucrats, Silicon Valley tyrants, left-wing activists and depraved corporate news media” that he said had been conspiring “to manipulate and silence the American people.”

Trump appeared to have been fired up by Elon Musk’s release of Twitter documents related to the company's efforts to weed out misinformation and disinformation, which Trump alluded to as “bombshell reports.”

Also: Donald Trump Threatens More Lawsuits Against Media

He called those trying to prevent online disinformation a cartel that had collaborated to suppress vital information on “everything from elections to public health,” a cartel he said had to be “destroyed.”

Trump said that if he is re-elected he would issue executive orders banning any government effort to work with online platforms “to impede lawful speech.” He said no federal money would be used to help label speech as misinformation or disinformation.

Trump was banned from Twitter for spreading false information about widespread election corruption.

He said he launched a hunt to find and fire any government official who had “engaged in domestic censorship,” whether directly or indirectly.

He said he would order the Department of Justice to launch an investigation of what he called the “online censorship regime” and prosecute a host of civil, criminal or constitutional “offenses.”

Trump said he would ask Congress to revise Section 230, which currently provides online platforms immunity from civil prosecution for third-party content. He said to get Big Tech out of the censorship business, that immunity should only apply if they meet "high standards of neutrality, transparency, fairness and nondiscrimination."

“We need to break up the entire toxic censorship industry that has arisen under the false guise of tackling so-called mis- and disinformation,” including by refusing to fund any nonprofit or university trying to identify and weed out misinformation and disinformation. He said any university found to be doing so should not get federal funding and their students should not get federal loans for at least seven years.

Trump suggested that online platforms were being “infiltrated” by former government deep-staters, including intelligence officials, so he would call for a seven-year period before any employee of various security agencies could take a job at “a company possessing vast quantities of user data.”

He also called for a digital bill of rights, but one very different from the kind Democrats have long espoused. He said that would include a right to due process, which meant government officials would need a court order to take down online content, “not send information requests, much as the FBI was sending to Twitter.”

Trump said all users over 18 should have “the right” to “opt out of all content moderation entirely” and receive an “unmanipulated stream of information if they so choose.” ■

Computer companies and edge providers are asking the U.S. Supreme Court to weigh in on the issue of whether state governments can impose what the Computer & Communications Industry Association (CCIA) is branding must-carry for online platforms and a "road map" for those wishing to fill the internet with offensive content edge providers would have to carry.

Cable operators have long been subject to must-carry rules governing carriage of broadcast stations, carriage those operators have also argued is compelled speech that violates the First Amendment, though those rules remain on the books.

CCIA and NetChoice, whose members include Amazon, Apple, Google, Facebook, and many others, have been making the same argument against a Florida law that made platforms liable for third-party speech.

On Monday (October 24), they filed a petition with the High Court asking it to rule on the constitutional issues after the State of Florida did the same.

The 11th U.S. Circuit Court of Appeals last May upheld a lower court's injunction against the enforcement of provisions in the law that restrict social media platforms' ability to moderate content while the underlying issue made its way through the courts. That court suggested Big Tech was likely to win on its First Amendment arguments.

But that appeals court left in place content moderation disclosure obligations computer companies say are unnecessarily, and unconstitutionally, burdensome to speech and hope the Supreme Court agrees with them.

The law was the product of a Republican-controlled legislature. Republicans have argued that Silicon Valley giants have attempted to suppress conservative speech in the guise of moderating their platforms and under the protection of Section 230 of the Communications Decency Act, which exempts them from civil liability over most of that third-party content.

Asserting that “social media platforms have unfairly censored, shadow-banned, deplatformed and applied post-prioritization algorithms to Floridians,” the law removed that Section 230 civil liability protection for content on Big Tech platforms — like Facebook or Twitter — that violated the law, including allowing for monetary damages up to $250,000 per day for deplatforming political candidates for statewide office and $25,000 for non-statewide offices.

That law, including the reporting obligations, “abridges websites’ editorial decisions and imposes crippling ‘disclosure’ obligations, forcing websites to explain each of the countless decisions they must make every day,” the CCIA/NetChoice petition said. “Such compelled obligations not only inflict enormous compliance burdens, but would provide a roadmap for those wishing to evade efforts to eliminate offensive content.” ▪️

Invoking YouTube, Twitter, TikTok, Reddit, Twitch and others, as well as fringe site 4chan, New York Gov. Kathy Hochul and Attorney General Letitia James are calling for a government crackdown on online platforms, saying they contributed to the Buffalo mass shooting that left 10 dead and three injured.

Among the things they want to see are getting internet-service providers more involved in controlling edge provider content that leads to radicalization and violence, creating a version of “tape delay” for live streaming and the taking of “reasonable steps to prevent unlawful violent criminal content” — the quid pro quo for Section 230 immunity from liability for third-party content.

The pair released a report on the role of online platforms in the shooting that concluded, among other things, that “a lack of oversight, transparency and accountability of these platforms allowed hateful and extremist views to proliferate online, leading to radicalization and violence.”

They say there need to be changes made to Section 230 of the Communications Decency Act, which provides immunity from civil liability for most third-party posts on social media platforms.

Among the changes they recommend are new state laws that would criminalize a perpetrator’s creation of graphic images of a homicide and would penalize with civil liability anyone or any platform that reshares or reposts such images or videos.

“The tragic shooting in Buffalo exposed the real dangers of unmoderated online platforms that have become breeding grounds for white supremacy,” said James, who shared the report's findings with victims’ families.

James was laying some of the blame for recent mass shootings on edge providers. “We saw this happen in Christchurch, Charlottesville, El Paso, and Buffalo, and we cannot wait for another tragedy before we take action,” she said. “Online platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms.”

Following the shooting, Hochul, whose hometown is Buffalo, asked the attorney general’s office to produce the study. James’s office said it subpoenaed thousands of pages of documents obtained under subpoena from Facebook, Instagram, Twitter, TikTok and Rumble.

The report concluded that:

• “Fringe Platforms Fuel Radicalization: By his own account, the Buffalo shooter was radicalized by virulent racist and antisemitic content on anonymous, virtually unmoderated websites and platforms that operate outside of the mainstream internet, most notably 4chan. In the wake of the Buffalo shooting, graphic video of the shooting recorded by a viewer of the shooter’s livestream proliferated on fringe sites. The anonymity offered by 4chan and platforms like it, and their refusal to moderate content in any meaningful way, ensures that these platforms continue to be breeding grounds for racist hate speech and radicalization.
• “Livestreaming Has Become a Tool for Mass Shooters: Livestreaming has become a tool of mass shooters to instantaneously publicize their crime, further terrorizing the community targeted by the shooter and serving as a mechanism to incite and solicit additional violent acts. The Buffalo shooter was galvanized by his belief that others would be watching him commit violence in real time. Although the platform he used to live-stream his atrocities disabled the live stream within two minutes of the onset of violence, two minutes is still too much.”
• “Mainstream Platforms’ Moderation Policies Are Inconsistent and Opaque: Many large, established platforms improved on their response time for identifying and removing problematic content related to the Buffalo shooting, including graphic video of the shooting and the shooter’s manifesto, as compared to past events. However, the platforms’ responses were uneven, with one platform unable to identify posts that linked to off-site copies of the shooting video even after those posts were flagged through user reports. Many platforms also do not fully disclose how they moderate hateful, extremist, or racist content.
• “Online Platforms Lack Accountability: Online platforms enjoy too much legal immunity. Section 230 of the Communications Decency Act largely insulates platforms from liability for their content moderation decisions, even when a platform allows users to post and share unlawful content.”

Recommendations for Reform

Given those findings, Hochul and James said action was needed and recommended the following reforms:

• “Add Restrictions to Livestreaming: Livestreaming was used as a tool by the Buffalo shooter, like previous hate-fueled attacks, to instantaneously document and broadcast his violent acts to secure a measure of fame and radicalize others. Livestreaming on platforms should be subject to restrictions — including verification requirements and tape delays — tailored to identify first-person violence before it can be widely disseminated.
• “Reform Section 230: Currently, Section 230 of the federal Communications Decency Act protects online platforms from liability for third-party content that they host, regardless of those platforms’ moderation practices. Congress should rethink the ready availability of Section 230 as a complete defense for online platforms’ content moderation practices. Instead, the law should be reformed to require an online platform that wishes to retain Section 230’s protections to take reasonable steps to prevent unlawful violent criminal content from appearing on the platform. This proposal would change the default. Instead of simply being able to assert protection under Section 230, an online platform has the initial burden of establishing that its policies and practices were reasonably designed to address unlawful content.
• “Increase Transparency and Strengthen Moderation: Online platforms should provide better transparency into their content moderation policies and how those policies are applied in practice, including those that are aimed at addressing hateful, extremist, and racist content. They should also invest in improving industry-wide processes and procedures for reducing the prevalence of such content, including by expanding the types of content that can be analyzed for violations of their policies, improving detection technology, and providing even more efficient means to share information.
• “Call on Industry Service Providers to Do More: Online service providers, like domain registrars and hosting companies, stand in between fringe sites and users. These companies should take a closer look at the websites that repeatedly traffic in violent, hateful content, and refuse to service sites that perpetuate the cycle of white supremacist violence." ■

The Supreme Court will hear two appeals of lower-court decisions involving the hot-button issue of online content moderation — in these cases specifically speech furthering terrorism — and the underlying Section 230 law that gives edge providers immunity from civil liability for their moderation of most third-party content posted on their sites.

Computer companies say it will be the first time the Supreme Court will weigh in on the now-controversial immunity under Section 230 of the Communications Decency Act, which both Democrats — including President Joe Biden — and Republicans have targeted for change or elimination.

In a list of orders of the court released Monday (October 3), the High Court agreed to hear appeals (known as “granting cert” in court lingo) of the Twitter v. Taamneh and Reynaldo v. Google decisions.

Also: FCC”s Carr Says It’s Time To Regulate Big Tech

Twitter, along with Google and Facebook, appealed a decision by the 9th U.S. Circuit Court of Appeals that combined the Taamneh and Gonzalez cases in a single decision. That ruling held that in Gonzalez the plaintiffs were barred by Section 230 immunity, but in the Twitter et al. case it held that, irrespective of Section 230, Twitter — as well as Google and Facebook — could be held liable for aiding and abetting terrorism because they “provided generic, widely available services to billions of users who allegedly included some supporters of ISIS,” as Twitter put it.

The Gonzalez case involved the posting of ISIS recruitment videos.

While the terrorism content is on the extreme end of the debate over content moderation, how the High Court decides the cases could have direct bearing on laws being considered or passed that limit how social media companies can manage content. Those measures are backed by Republicans who have argued that social media platforms censor conservative speech under the misapplied umbrella of weeding out hateful or dangerous speech.

“The cases challenge companies for allegedly not doing enough to address dangerous content on their sites at a time when several state legislatures are seeking to tie companies’ hands, arguing they are doing too much to remove content like disinformation or propaganda,” said the Computer & Communications Industry Association (whose members include Twitter, Google and Facebook).

Twitter had said the Supreme Court should leave the Gonzalez decision and its support for Section 230 immunity in place, since all parties in the Twitter case said that because the cases are similar, leaving that protection in place on the terrorism-related speech issue would resolve the Twitter et al. case (by signaling that they, too, had Section 230 immunity).

But the High Court has decided to hear both the Gonzalez and Taamneh decision appeals, so the issue is far from resolved.

“These cases underscore how important it is that digital services have the resources and the legal certainty to deal with dangerous content online," CCIA president Matt Schruers said. “Section 230 is critical to enabling the digital sector’s efforts to respond to extremist and violent rhetoric online, and these cases illustrate why it is essential that those efforts continue.”

In the wake of the Supreme Court's decision to hear the Gonzales and Taamneh cases, the communications attorneys at law firm Steptoe & Johnson say that a decision in favor of weakening Se. 230 could hurt more than internet giants.

"[A]lthough Section 230 is often viewed as protecting large Internet companies, it also protects smaller Internet platforms, such as blogs or the online comment sections of local newspapers. A court ruling limiting the protections of Section 230 could lead those platforms to shut down comments due to the expense and uncertainty of monitoring user submissions," they said in a blog post that chronicles the issue's peripatetic trip through the courts.

"Section 230 is a foundational and widely misunderstood law that protects human rights and free expression online," said Even Greer, director of Fight for the Future, which has fought to preserve Sec. 230. "At a time when civil rights and civil liberties are under unprecedented attack, weakening Section 230 would be catastrophic—disproportionately silencing and endangering marginalized communities including LGBTQ+ people, Black and brown folks, sex workers, journalists, and human rights activists around the world," she said. ■

Supreme Court nominee Ketanji Brown Jackson declined to get into the debate over regulating social media using their Section 230 immunity from civil liability for most third-party content. But she did signal if the goal were to regulate certain viewpoints, that would be problematic.

Both Republicans and Democrats have expressed support for limiting that immunity or perhaps eliminating it entirely, but for different reasons. Many Republicans argue that social media platforms like Facebook and Twitter have suppressed conservative speech.

During the first day of questioning in the days-long nomination hearing in the Senate Judiciary Committee, Sen. Mike Lee (R-Utah) brought up Section 230 and posed this question:

"The Communications Decency Act provides a degree of immunity for tech companies operating in the space of being online interactive service providers. It immunizes them from certain causes of action that would otherwise apply against them. Would it be within Congress' authority to condition the receipt and availability of Sec. 230 immunity on those online interactive service providers operating as a public forum? That is, not discriminating on the basis of the viewpoint of those posting on them."

Jackson said she could not comment on whether or not, on a particular issue, is constitutional or not.

She could have stopped there, but instead added: "[Given] the criteria that you identified, it would be relevant, I think, as to whether or not the government is seeking to regulate along viewpoint lines. Under the First Amendment, that is something that is generally impermissible." 

Sens. Amy Klobuchar (D-Minn.) and Richard Blumenthal (D-Conn.) both talked about reining in Big tech, both through antitrust and because of a mental health crisis abetted by social media platforms. 

They weren't asking Brown to weigh in, just making sure she knew their concern about the issues, including what Klobuchar had said were court decisions that weakened antitrust laws.

Brown did say that the role of the court was to interpret statutes when there are disputes and, in circumstances where statutes have been updated, there are such disputes. She said to the extent that Congress makes statutory changes, it helps courts to resolve those disputes more easily.

Brown pointed out that she has written about digital recording audio device statutes and whether royalties were required and the relevant statute that was written before that digital recording age. She called it an interesting interpretive exercise, but that she was focused on what Congress intended the statute to cover.

Blumenthal talked about the buying and selling of cell phone-related data that consumers don't have control over, and for which their redress is often only forced arbitration. 

He said Jackson has dedicated her career to access to the justice system and that he was trying to make sure people had access to their data. He said he hoped she would consider the court trends in support of forced arbitration and denial of class action rights. He did not ask for a response, nor did she volunteer one.■

The Senate Judiciary Committee has favorably reported the EARN It Act to the full Senate, but with the agreement to work on some issues as it moves toward a floor vote. 

The Eliminating Abusive and Rampant Neglect of Interactive Technologies [EARN IT] Act would remove Section 230 immunity from liability from edge providers who knowingly distribute or promote child sexual abuse materials on their websites. 

The vote came during a committee markup of the bill on Thursday (Feb. 10).

Computer companies have opposed the EARN It Act, while law enforcement and child protection advocates support it. Some human rights groups have expressed issues about encryption and privacy and the bill‘s impact on journalists and others.

The EARN It Act would not mandate an affirmative duty for companies such as Google, Amazon, Netflix or Facebook to police their sites or review material. It would only remove the immunity for not “reasonably inspecting” their material, which means if they are informed of such material and do nothing to keep it off their sites, they would lose civil liability immunity for that particular third-party content.

One issue was the bill's impact on encryption of private communications, but bill co-sponsor Sen. Richard Blumenthal (D-Conn.) said that the bill does not prohibit encryption, but only the misuse of encryption to further illegal activity.

Also: DAs Make Case for EARN It Act

Both Democrats and Republicans signaled that if any Big Tech company tried to use the lack of an affirmative duty as a loophole, those legislators might have to circle back and mandate that the sites review their material.

Sen. Lindsey Graham (R-S.C.), the bill's other principal co-sponsor, said that whether there should be an affirmative duty to police sites is another issue and that when informed of such content he hoped Big Tech would act responsibly. If not, he signaled such a duty would be “in his next bill.”

Blumenthal said that despite the arguments of Big Tech‘s armies of lawyers, the bill was not about encryption, which he called a “gigantic red herring,” or free speech, he said. “Rape is not free speech,” he said. There are companies that are vigorous partners in the effort to fight child sexual abuse, he added, because they know it can be done.

He said the bill was about expanding mandatory reporting, doubling the time that companies are required to preserve evidence of child exploitation, fostering the next generation of technology to fight abuse and holding tech companies accountable when they fail to supervise and prevent the spread of child sexual abuse material.

Among the issues to be worked out before a full Senate vote include whether not having the affirmative obligation in the bill is a loophole that needs fixing now, clarifying the encryption provision, the impact of the law on smaller websites and whether a state definition of knowledge of illegal material should be incorporated into the bill, as is currently the case.

Sen. Mike Lee (R-Utah) pointed out that could mean that in Illinois, for example, whose knowledge standard goes beyond “knew” to “should have known,” tech platforms could be held to that standard.

Blumenthal said he thought incorporating state standards was still better than “straitjacketing” them to a federal standard. ■

In the wake of a report in The New York Times on a website that provides instrucctions and support for people contemplating suicide, Sen. Richard Blumenthal (D-Conn.) wants the major search engines to remove the site from their search results.

“We are in the midst of a mental health crisis, particularly among young people,” Blumenthal wrote in letters to Google and Microsoft’s Bing. “By providing instructions and social pressure, the site is helping to fuel this crisis and is directly culpable for the deaths of many young people.”

Blumenthal has been one of the big critics of Big Tech companies for how they moderate content on their site. He’s among the lawmakers threatening to remove or weaken social media sites’ exemption from civil liability under Section 230 of the Communications Decency Act for most third-party content on their platforms, particularly if they don't use power to pre-empt dangerous content.

Also: House E&C Leaders Seek Meetings About Suicide Website

Blumenthal cited the Times story’s assertion that while both platforms had been asked to “steer people away from the website” — which is actually a step further than just not showing it among the results — they have declined to do so. The senator said the companies have not only the ability but the legal authority to do so given the “Good Samaritan” provision of Section 230, which allows companies to take actions to limit protected speech.

“Congress made clear its intent for companies like Google to act as Good Samaritan managers of their platforms, not to shield it from its obligations to protect vulnerable communities," the senator said.

Computer companies and edge providers are telling a U.S. Appeals Court that a lower-court judge was right when he blocked implementation of Florida’s content moderation law, concluding it was unconstitutional, and that it should come to the same conclusion.

Also read: Big Tech Sues Florida Over Sec. 230 Law

The Computer and Communications Industry Association and NetChoice teamed up on a brief this week to the 11th U.S. Circuit Court of Appeals, which is hearing Florida's challenge to the lower-court judge’s ruling.

They told the appeals court that the law would allow anyone “from a foreign government spreading propaganda to those spreading terrorist content” to sue a platform if it didn’t host their material.

“The District Court properly enjoined Florida’s unprecedented effort to strip online service providers of their constitutionally protected editorial judgment and replace it with the state’s own judgments and preferences,” the brief asserted. “Florida did not conceal the motivation for its novel law: to target certain large online service providers for exercising their editorial judgment in a manner that the state disfavors.”

The law was the product of a Republican-controlled legislature. Republicans have argued that Silicon Valley giants have attempted to suppress conservative speech in the guise of moderating their platforms and under the protection of Section 230 of the Communications Decency Act, which exempts them with civil liability over most of that third-party content.

Asserting that “social media platforms have unfairly censored, shadow-banned, deplatformed and applied post-prioritization algorithms to Floridians,” the law presumes that doing so is not acting in bad faith, which means it is legally actionable. The law removes civil liability protection for content on Big Tech platforms — like Facebook or Twitter — that violates the law, including allowing for monetary damages up to $250,000 per day for deplatforming political candidates for statewide office, and $25,000 for non-statewide offices.

CCIA and NetChoice, whose membership also includes companies like Facebook, Google and Amazon, sued the state, saying that the law would open platforms to suits for content moderation policies designed to protect users’ safety. After the judge agreed to block the law as unconstitutional, Florida challenged that decision in the 11th Circuit.

“Digital services invest in protecting Internet users from dangerous and harmful content and behavior, whether it is extremists glorifying violence against Americans or trolls promoting self-harm, and a federal court has already agreed with us that Florida’s law would thwart those efforts,” CCIA said. “Policymakers shouldn’t guarantee safe spaces online for anti-American extremists, predators, or foreign agents spreading misinformation.”

Sen. Richard Blumenthal (D-Conn.), chairman of the Senate Consumer Protection, Product Safety, and Data Security Subcommittee, is trying to pressure Facebook CEO Mark Zuckerberg to testify on Instagram's impact on youth before his panel, saying to date the executive has been evasive and his company dismissive of evidence it puts profits before the health of teen users.

Also Read: At Haugen Hearing, Blumenthal Calls It Big Tech's Big Tobacco Moment

That pressure has been growing in the wake of Facebook whistleblower Frances Haugen’s testimony to Congress. Haugen, armed with internal research, told the Senate that the company prioritizes profit over the mental health of its users and knows it is doing so. Facebook says the research shows the company’s Instagram social-media platform is helpful, not harmful, to most teens, and that it used the research to help the minority who said Instagram reinforced their negative body images.

Haugen told Blumenthal and the subcommittee that Facebook was buying its profits with consumer safety and that it intentionally hides documents and repeatedly misleads the public. Until incentives change, she argued, the company won't.

Blumenthal wrote that “as recently as this weekend,” the company was continuing to downplay the reporting about the impact of the research as an “orchestrated ‘gotcha’ campaign.”

The senator said Zuckerberg needed to clear up some inconsistencies between Haugen's testimony and that of Antigone Davis, global head of safety for Facebook, in a separate hearing. There have been multiple hearings on Big Tech's impact on little users.

Blumenthal, in a letter to the CEO dated Wednesday, said Zuckerberg has “doubled down on evasive answers” and “kept hidden” reports on the health of its teenage users, only providing vague plans for action sometime in the future. "Rather than casting baseless aspirations on whistleblowers and journalists, Facebook should be vigorously acting to provide parents with firm commitments for dramatic reforms and direct answers. Sadly, it is not," he says.

Blumenthal wrote that it was “urgent and necessary” for Zuckerberg or Adam Mosseri, who heads up Instagram for Facebook, to testify.

While Facebook has been pushing back on characterizations related to its internal research, it has at the same time blanketed D.C. with ads talking about how it wanted the government to step in and set rules of the road for content moderation.

That effort is in part to head off tough legislation that could break up Big Tech companies or curtail or eliminate their immunity under Section 230 of the Communications Decency Act from civil liability for most third-party content.

Representatives from Snapchat, TikTok and YouTube have agreed to testify at an Oct. 26 Senate hearing, and they should probably come in flak jackets.

The hearing is the bipartisan handiwork of Senate Subcommittee on Consumer Protection, Product Safety and Data Security chairman Richard Blumenthal (D-Conn.) and ranking member Marsha Blackburn (R-Tenn.), both of whom have been highly critical of edge provider practices.

Also Read: Big Tech-Targeted Senate Bill Introduced

“The bombshell reports about Facebook and Instagram — their toxic impacts on young users and lack of truth or transparency — raise serious concerns about Big Tech’s approach toward kids across the board,” said Blumenthal, who has been saying for a while that he wanted to get representatives from other platforms to testify before the committee.

The Oct. 26 hearing is the fourth in a series on the impact of the edge on children and young people.

“Big tech companies continue to prioritize profit over safety and, in doing so, are harming children online,” Blackburn said, going further than Blumenthal in hammering the upcoming witnesses by name. “TikTok, Snapchat and YouTube all play a leading role in exposing children to harmful content.”

Blumenthal has said he believes Big Tech is having a Big Tobacco moment, an observation that came following the revelations about Facebook's internal research findings that some young people found Instagram contributed to their depression and negative body image.

Also Read: ‘How to Stop Facebook’ Campaign Launched

Facebook, Instagram’s owner, has bought a lot of airtime in Washington for ads arguing for regulations on its content moderation, likely because it sees Washington is serious about regulating the platform. The social-media giant wants to head off the potential elimination of its immunity from civil liability for most third-party content on its sites under Section 230 of the Communications Decency Act.

In the wake of the revelations by a Facebook whistleblower and allegations about the company’s internal research about the impact of its platforms on young people, House Energy & Commerce Committee leaders have proposed a bill that targets “reckless” use of algorithms by limiting Section 230.

Former Facebook staffer Frances Haugen testified about the documents before the committee at a heated hearing that prompted legislators to suggest it was Big Tech‘s Big Tobacco moment.

Section 230 is the add-on to the 1996 Communications Decency Act that provides web platforms immunity from civil liability for what appears on their platforms.

Also Read: Rep. Eshoo Pushes for Subpoena of Facebook Documents

While there has been bipartisan criticism of Facebook, the legislators unveiling the bill are all Democrats: Energy and Commerce Committee chairman Frank Pallone Jr. (D-N.J.), Communications Subcommittee chairman Mike Doyle (D-Pa.) and Consumer Protection Subcommittee chair Jan Schakowsky (D-Ill.).

The bill, the Justice Against Malicious Algorithms Act, would remove absolute immunity for an edge provider that “knowingly or recklessly uses an algorithm or other technology to recommend content that materially contributes to physical or severe emotional injury.”

The bill does not apply to “small” online platforms, which are defined as fewer than five million unique monthly visitors, or to algorithms or search features that aren't based on personalization, or to infrastructure like Web hosting or data transfer or storage.

The big issue with Facebook‘s internal research was that it showed that some teens said Instagram made them feel worse about themselves and even contributed to thoughts of suicide. Facebook countered that the research found that a majority of kids did not feel that way, and that the info helped them take actions to help those who did.

But Congress has not been assuaged, arguing that Facebook has not done nearly enough, while keeping that research under wraps and downplaying the negative results.

“Social media platforms like Facebook continue to actively amplify content that endangers our families, promotes conspiracy theories, and incites extremism to generate more clicks and ad dollars,” Pallone said. “These platforms are not passive bystanders — they are knowingly choosing profits over people, and our country is paying the price. The time for self-regulation is over, and this bill holds them accountable. Designing personalized algorithms that promote extremism, disinformation, and harmful content is a conscious choice, and platforms should have to answer for it.”

Added Doyle: “We finally have proof that some social media platforms pursue profit at the expense of the public good, so it’s time to change their incentives, and that’s exactly what the Justice Against Malicious Algorithms Act would do. Under this bill, Section 230 would no longer fully protect social media platforms from all responsibility for the harm they do to our society. It’s my hope that by making it possible to hold social media platforms accountable for the harm they cause, we can help optimize the internet’s impact on our society.”

Facebook whistleblower Frances Haugen got an angry and attentive bipartisan audience at a Tuesday (Oct. 5) hearing of the Senate Subcommittee on Consumer Protection, Product Safety and Data Security, led by Sen. Richard Blumenthal (D-Conn.), who called it a Big Tobacco moment for Big Tech.

A former Facebook product manager and data scientist, Haugen took documents when she left the company that she said show its algorithms “amplify polarizing and hateful content” for the sake of profit — a motive partly responsible for “tearing societies apart” — and that the company had research showing that but obscured the fact that it is harmful.

Haugen said Facebook was buying its profits with consumer safety and that it intentionally hides documents and repeatedly misleads the public. Until incentives change, she argued, the company won't.

Also Read: Sen. Blumenthal Says Facebook Weaponizes Childhood Suffering

She pointed out that the government took action to curb serious auto accidents (seat belt mandates), against tobacco and against opioid abuse, suggesting taking action now against Facebook was in the same category.

Blumenthal, the subcommittee’s chairman, called the company “morally bankrupt” and called on Facebook founder and CEO Mark Zuckerberg to come before the committee rather than taking a “nothing to see here” approach by “going sailing,” as he suggested Zuckerman had done.

He said if that misleading charge is true, the Federal Trade Commission needs to step in using its authority to pursue false and misleading information.

Also Read: Hill to Hear from Facebook Whistle Blower

Citing last week’s Facebook hearing witness, Antigone Davis, global head of safety for Facebook, who said the research was not a bombshell, Blumenthal said it was the very definition of a bombshell and that Big Tech was having its Big Tobacco moment, the moment when research shows they knew its product was harmful, but concealed that knowledge for the sake of profit. As Connecticut’s attorney general, Blumenthal had led that state’s action against Big Tobacco and remembered the moment when he had the files that showed tobacco knew its product caused cancer.

Ranking member Sen. Marsha Blackburn (R-Tenn.) said Facebook abused consumers’ privacy, did not respect its users, invaded the privacy of children, and was in violation of federal law — the Children’s Online Privacy Protection Act (COPPA).

Sen. Roger Wicker (R-Miss.), ranking member of the parent Senate Commerce Committee, said Congress must act against powerful tech companies to protect children and the public at large. He called their product addictive, and agreed that legislators on both sides of the aisle are concerned. Wicker said he had talked to an opinion maker just before the hearing who said “the tech gods had been demystified.” Wicker agreed, and said that the hearing was furthering that process.

Both Blumenthal and Blackburn suggested they would be looking to narrow Big Tech's immunity from civil liability for third-party content on their platforms under Section 230 of the Communications Decency Act. 

Haugen said the way to modify Sec. 230 is to exempt platform decisions about their algorithms. Those platforms may arguably not have the control over third-party content, but she said they have 100% control over their algorithms. 

But while there have been ongoing bipartisan differences between what is considered particularly sensitive data and how that should be protected, Facebook’s research revelations could potentially be the tipping point that brings Democrats and Republicans together over a common “enemy.” That certainly seemed to the the case Tuesday,

Blackburn predicted that this Congress would be the one where online privacy legislation finally passed, something both sides have been talking about for almost a decade.

Also Read: Facebook Whistleblower's Identity Revealed on ‘60 Minutes’

The time has come for action on privacy legislation, agreed Sen. Amy Klobuchar (D-Minn.), "and I think you are the catalyst," she told Haugen.

Sen. Jerry Moran (R-Kan.) said he agreed it was time to bridge the partisan differences and pass bipartisan privacy legislation. Blumenthal said he thought the differences were minor, particularly in the face of what they had learned about Facebook. Joined by Sen. John Thune (R-S.D.) they agreed it was time to get to work and get it done.

Haugen revealed her identity on CBS’s newsmagazine 60 Minutes, which drew a strong rebuttal from Facebook. Haugen told the committee she had revealed herself at great personal risk because she believed there was still time to address the Facebook issues. Blumenthal assured her that the committee would do what it could to protect her from any retaliation.

Sen. Ed Markey (D-Mass.), historically one of the strongest advocates for children's online protections and a primary author of COPPA, called Haugen a 21st Century American Hero.

Markey warned that Facebook lobbyists would he making visits after the hearing telling Congress it can't act.

Facebook took aim at Haugen's authority on the subjects on which she testified, and again said they supported some regulation of Big Tech.

“Today, a Senate Commerce subcommittee held a hearing with a former product manager at Facebook who worked for the company for less than two years, had no direct reports, never attended a decision-point meeting with C-level executives – and testified more than six times to not working on the subject matter in question," said Ena Pietsch, director of policy communications. "We don’t agree with her characterization of the many issues she testified about. Despite all this, we agree on one thing; it’s time to begin to create standard rules for the internet. It’s been 25 years since the rules for the internet have been updated, and instead of expecting the industry to make societal decisions that belong to legislators, it is time for Congress to act.”

A new package of House Republican-backed Big Tech-targeted reform bills would carve up Section 230 by carving out a bunch of actors and actions from the section's protection of social media sites from civil liability for the content they host.

The Sec. 230-targeted legislation was just part of a massive drop of draft bills by House Republicans, though for any to make it to law they would need buy-in by some of the Democrats who control that chamber.

The bills include ones that would deny Sec. 230 protections from those who "censor "constitutionally protected speech" and from so-called "bad Samaritans," defined as those who "knowingly promote, solicit, or facilitate illegal activity."

Also Read: Big Tech Sues Florida Over Sec. 230 Law

Also being carved out of those protections would be 1) companies with "direct or indirect ties to the Chinese Communist Party"; 2) companies "who take action based on a user’s racial, sexual, political affiliation, or ethnic grounds"; 3) cyberbully posts; 4) "doxxing" (malicious exposure of private information); 5) terrorist content; 6) content that exploits children; 7) content about counterfeit products; 8) the illegal sale of drugs as well as the sale of illegal drugs; 9) product liability claims if a site has possession or control of a product.

Also Read: Facebook on Sec. 230: Regulate Us, Please

In addition to the bills removing Sec. 230 protections from all of the above, there are also companion bills requiring companies to apply reasonable content moderation practices to address all of the above.

Under a proposed new law, if the algorithm of a Twitter or Facebook promotes vaccine misinformation and disinformation on their sites, edge providers will be considered publishers of that content, and thus liable for it.

With vaccine/COVID-19 misinformation a hot topic in D.C. and at the White House, Sen. Amy Klobuchar (D-Minn.) and Sen. Ben Ray Luján (D-N.M.) has introduced a bill, the Health Misinformation Act of 2021, that would remove Section 230 civil civil liability protection for third-party content from edge providers whose algorithms promote that misinformation.

“For far too long, online platforms have not done enough to protect the health of Americans,” said Klobuchar in a statement. “These are some of the biggest, richest companies in the world and they must do more to prevent the spread of deadly vaccine misinformation. Earlier this year, I called on Facebook and Twitter to remove accounts that are responsible for producing the majority of misinformation about the coronavirus, but we need a long term solution. This legislation will hold online platforms accountable for the spread of health-related misinformation. The coronavirus pandemic has shown us how lethal misinformation can be and it is our responsibility to take action.”

What will constitute health misinformation subject to the law. The Secretary of Health & Human Services, "in consultation with the heads of other 18 relevant Federal agencies and outside experts determined 19 appropriate by the Secretary, will get to make that call.

Also Read: Facebook to D.C. on Sec. 230: Regulate Us, Please

Although he has since said he was talking about the misinformers, not the messenger, President Biden said vaccine misinformation on Facebook is killing people.

Facebook called the comments unsupported accusations that are a distraction from its effort to save lives.

The White House has been in talks with media outlets and Big Tech players over the vaccine misinformation issue as the Delta variant pushes COVID-19 infection numbers up, while vaccine rates have gone down.

In an Apple Watch-era version of a stem-winder, Consumer Technology Association president and CEO Gary Shapiro fired back at Big Tech critics Tuesday (June 22), including backers of a bipartisan antitrust legislative package being marked up in the House this week.

In a virtual speech to the Media Institute, Shapiro said the bills were being rushed through without a hearing or testimony because it was politically expedient and that they targeted the same tech companies that rescued the country during the pandemic.

He said accommodating free speech, free markets and tech innovation is one of the most pressing issues facing our nation but suggested all those are at risk, and at an inflection point, due to attacks on tech companies from the left and right.

Also Read: Big Tech Asks Hill to Delay Antitrust Bill Markup

Shapiro said the nation appears less interested in protecting free speech than at any other time, citing "cancel culture" among the threats to the "fundamental shared desire to freely express divergent views."

He cited the defense of a Nazi group’s right to parade in Skokie, Illinois, in 1977 as an example of the kind of protection distasteful speech that appears to be at risk.

Shapiro said social media companies are being pressured by government to take actions that can't be squared with the First Amendment. He cited former President Donald Trump's social media ban, saying that is not in the best interests of the country.

He said barring the President from social media chilled speech and disenfranchised millions of his followers. And while not a Trump fan, he said, neither was he a fan of harmful and divisive" bans under pressure from politicians.  

Shapiro said he was concerned about all the bills in the House antitrust passage — which he said had been rushed through the process without hearings or testimony — but singled out one making it harder for tech platforms to buy other companies. He said that will dry up venture capital and hurt entrepreneurs since one of the ways they get that capital is the potential of a buyout.

The Platform Competition and Opportunity Act of 2021 would prohibit the purchase by a Big Tech platform of any other business unless it could prove that it is not purchasing a direct competitor.

Shapiro said both parties are pushing proposals in conflict with the letter and spirit of the First Amendment. Those include the congressional efforts, via antitrust changes. He also cited a new Florida law that tells platforms what content they can allow.

Also Read: CTA Backs Opposition to Florida’s Big Tech Law

The law limits a website’s immunity under Section 230 of the Communications Act from civil liability over its moderation of third-party content, a point its language makes clear, saying: “social media platforms have unfairly censored, shadow banned, deplatformed and applied post-prioritization algorithms to Floridians.”

He said he supported clear and reasonable guard rails — on things like defamation, slander and infringement, given that businesses prefer regulatory certainty — and it is certain there will be some kind of regulatory pushback on Big Tech, given its bipartisan backing. But Shapiro warned against imposing new liabilities, mainly removing the Section 230 legal liability shield from website moderation of third-party content. He said that would only play into the hands of lawsuit-happy attorneys.

President Joe Biden has rescinded former President Donald Trump’s May 2020 Section 230 executive order on online censorship (order 13925 on “Preventing Online Censorship,”) which was targeted at social media sites Trump had long argued were biased against conservatives and his Administration.

The current president has his own issues with Section 230 (candidate Biden told The New York Times it should be revoked. That section of the Communications Act provides websites with immunity from civil liability for their treatment of content posted on their sites by third parties, but the Trump effort was clearly not the way he wanted to approach the issue, which is still hot, though the effort to enlist the FCC as a regulator did not go anywhere.

Trump’s May 28 executive order enlisted the Federal Communications Commission in trying to weed out alleged censorship of conservative speech by labeling it deceptive and thus a violation of an online content provider's terms of service.

Current acting FCC chairwoman Jessica Rosenworcel at the time opposed the agency‘s participation in what appeared to be an exercise in discouraging content the president didn't like.

The order also directed the government not to spend ad dollars on sites determined to be violating those terms of service.  

As an independent agency, the FCC is not subject to executive orders, so the National Telecommunications & Information Administration was charged with asking the FCC to implement new rules allowing the FCC to judge under what conditions restricting access to content can be considered a violation of an online platform's terms of service. Currently the FCC does not regulate social media sites or ISPs beyond their terms of service.

The FCC ultimately took no action on the NTIA petition to regulate social media sites.

Biden revoked the order along with some others that tried to prevent the removal of "American Monuments, Memorials and Statues," and tied their attempted removal to "criminal violence."

Internet companies including Reddit, Etsy and Dropbox have joined other Tech companies warning Congress anew about tinkering with their Sec. 230 shield from civil immunity for the third party content on their platforms.

That comes on the eve of a March 25 hearing in the House Energy & Commerce Committee on Big Tech's hosting of potentially dangerous disinformation.

Also Read: House Readies Disinformation Nation Hearing

The Internet Works coalition of slightly-less-big tech said that while they recognized "the harms that misinformation and extremism present online" and say they appreciate the light congress is putting on those "challenges," they also said that as the committee figures out how to meet those challenges, "it is important to remember that Section 230 does far more than protect internet businesses and organizations from liability when they host third-party content."

As have other big tech defenders, the group said Sec. 230 actually ensures safety.

Also Read: Sec. 230 Carve-Out Bill Reintroduced

They said there was no "one size fits all" answer for how to moderate content, "as Congress considers potential changes to Section 230, it’s important to remember that the law’s flexibility has allowed companies of all sizes to flourish and tackle the harms that are unique to their platforms."

They are particularly concerned that changes aimed at the largest social media platforms--like Google and Facebook and Twitter--"do not create unintended consequences for the rest of the internet." 

The Computer & Communications Industry Association (CCIA) similarly warned about the consequences of damaging their liability shield.

Acting Federal Communications Commission chairwoman Jessica Rosenworcel has sent a clear signal that she is still a big fan of network neutrality rules, and that she is no fan of the Trump administration petition to the agency to regulate social media using Section 230 of the Communications Decency Act of 1996.

That was made known as she presided over her first public meeting as acting chair, wielding the gavel from home and saying there was much on the FCC’s plate.

The commission’s being currently at a 2-2 political tie, she pointed out, will obviously have an impact on the timing of big-ticket items.

Asked about those two issues and how she planned to proceed, Rosenworcel said she had made it clear that as a commissioner she did not favor commission action on the petition from the National Telecommunications & Information Administration asking the agency to cut back on internet service providers’ protections under Section 230.

ALSO READ: ISPs Prepare for Flood of Broadband Billions

“I do not believe the FCC should be the president’s speech police,” she said. While she said she had no other insights on the petition, filed by the Trump administration in July 2020, clearly it is not getting traction if she remains chairwoman. 

On that topic, asked if she anticipated having the “acting” removed from her title, she said she would leave that up to the White House.

With respect to net neutrality, Rosenworcel said the record reflected that she supported net neutrality — she voted against the Restoring Internet Freedom order that eliminated the rules against blocking, throttling and paid prioritization — and that the FCC was “assessing right now what the best way forward is, conscious of the composition of the commission.” Most on both sides argue the best way would be for Congress to clearly establish exactly what the FCC’s authority over net neutrality is. 

Rosenworcel was asked about her plan for a top-to-bottom review of the agency, but suggested it was regular procedure for anyone taking over an agency to review issues in every bureau to see if they need a revamp.

One signal Rosenworcel has clearly sent is that there needs to be more intra- and inter-agency cooperation, communication and coordination, including around national security reviews of communications companies and tech.

EBB Must Flow

One big-ticket item that can’t wait is the FCC’s standing up of the $3.2 billion Emergency Broadband Connectivity Fund (EBB).

The commission has until next week to come up with a framework for handing out that money. It will be based on the Lifeline subsidy program already in place, but unlike Lifeline it is a six-month program using that $3.2 billion congressional allocation rather than an ongoing subsidy funded by fees on telecom bills.

At last week’s hearing, Republican commissioner Brendan Carr very publicly said he thought priority should be given to remote learning, an issue right in Rosenworcel’s wheelhouse. But she signaled the FCC was bound by the language of the legislation, which cited multiple constituencies of equal eligibility.

Nathan Simington got the unexpected nod from President Donald Trump last fall to join the Federal Communications Commission, a nomination he said he was surprised to receive but is clearly determined to make the most of. 

In this exclusive interview, his first as FCC commissioner, the former National Telecommunications & Information Administration official talks about his road from rural (and urban) Saskatchewan to a seat on the FCC, outlines his regulatory philosophy, pushes back on criticism from Hill Democrats and explains his take on the hot-button debate over Section 230 of the Communications Decency Act, the legal provision that protects social media platforms from liability for what their users post. Here’s an edited transcript of the conversation. 

B+C: Briefly tell us how you got from a rural community in Saskatchewan, Canada, to the Federal Communications Commission.

Nathan Simington: My family has always split its time — six months in each place — between my family farm in Kincaid, Saskatchewan, which you will have trouble finding on a map because it only has two or three hundred people, and Saskatoon, which is one of the principal cities.

On one hand, I certainly spent a lot of my life living in the country. But I was also fortunate to have access to great schools and opportunities in my urban home town and therefore to experience a variety of things.

I originally moved to the United States in 1999 when I was offered a scholarship to a college in Wisconsin. I went back to Canada for a couple of years for grad school, but returned to the United States in 2003, and I guess this time it stuck.

My background was originally in academia. I was planning to become a professor. But along with a lot of people between 2006 and 2008 [in the economic meltdown] when there were a lot of changes in society generally, I decided to try something else. I received my green card in 2007 and after working for a year in the market research industry, I decided to go to law school, which eventually led me here today.

B+C: You were at NTIA for only five or six months before being tapped for this post. What was your role there?

NS: I was the senior adviser in the front office, which means I was working daily with the deputy assistant secretary and assistant secretary to formulate policy and responses on a wide variety of issues. But my primary focuses were wireline issues, spectrum issues and internet governance issues.

B+C: How did you find out you had been nominated to the FCC?

NS: I must say I was surprised. I understand that the White House spoke to a number of people trying to determine who they wanted to nominate. I got a call that they had decided to offer me the candidacy. I think they had been interested in a number of the reforms and interagency cooperation initiatives that I had discussed. Even so, there was a lot to learn and a lot of people to meet with and convince. Somehow that wound up with me being here today.

B+C: Let’s talk about internet governance and Section 230. The Democrats have said that it was your work on that issue [Simington worked on a petition to the FCC mandated by the president] that got you the FCC job. You say the nomination surprised you. Why do you think the president picked you? Was your Section 230 expertise part of the reason?

NS: I would not claim to have been a Section 230 expert when I was hired by NTIA. I developed a certain amount of experience with 230 and knowledge of the related legal and regulatory issues during the course of my appointment there. But, frankly, you could find any number of people in August or September of 2020 who would have been much more prominent in the Section 230 world than I was. I had never published on it and never participated in a single conference on it. 

Until as recently as October, I don’t think the position had even emerged that Section 230 was within the FCC’s regulatory competence. Obviously I have become identified by both parties with the Section 230 controversies. To the extent there is any basis for that identification, I want to point out that it is now moot. 

Whoever is the new chair or acting chair will be the person with the agenda-setting ability and Chairman [Ajit] Pai has said no 230 item is going to come up during his tenure.

B+C: Do you anticipate it coming up during the tenure of his successor?

NS: That remains to be seen. Of course, President Trump has been closely identified with Section 230 and advocated on that, but let’s not forget President-elect [Joe] Biden has also called for repeal of 230. And beyond calls for repeal, I think there are significant 230 reform processes on both sides of the aisle.

So, what the future holds for Section 230 remains extremely unclear. That ties into the larger question of how, if at all, the U.S. government is going to choose to regulate social media. I suspect this is going to be the focus of legislation for some time to come as Congress hashes out how, if at all, it wants to address the question.

B+C: You told the senators at your confirmation hearing that you would check with the FCC ethics office about whether you should recuse yourself from any FCC item related to Section 230, as Sen. Richard Blumenthal (D-Conn.) argued you should. Did you, and what did they say?

NS: Yes, the ethics office at the FCC is not generally in the business of offering advisory opinions without a particular controversy in front of them, so they didn’t want to give me blanket advice. But they did say that on the basis of what they had seen and on the basis of any proposed actions they did not see any basis for recusal and, in the event that an item were to come up for voting, they would revisit that and issue a definitive decision.

B+C: So, do you think social media needs regulating?

NS: On the larger question of a social media regulatory regime, I don’t think the FCC has any broad power in that area. As far as whether I would like the FCC to take up a Section 230 rulemaking, I think we would need a very detailed consultative process to determine whether, in the end, that was wise. 

The arguments for and against are both significant. The argument ‘for; is essentially that the case law has gotten ahead of the statute and has caused unintended consequences that go beyond whatever the intent of the statute was and are now posing problems for the public good.

The argument ‘against’ — actually, there are many, but any kind of speech-regulation regime would be facially contrary to the First Amendment. Then, beyond that, there is also the question of how wise it would be to touch 230. Because the FCC may have the power to issue rules on that subject doesn’t mean that it should.

So, I think it would be a long, complicated and bipartisan process to determine the right action at the FCC.

B+C: What is your regulatory philosophy?

NS: Coming from private industry rather than the D.C. telecom bar, I put a lot of emphasis on the effect of capital management on business and the difficulties of doing so in an uncertain regulatory environment.

On my regulatory philosophy generally, obviously the FCC has a mandate from Congress to act in the public interest and the FCC has an obligation to do so and not to allow its judgment to be clouded by other considerations.

As against that, how you implement regulation and how you develop and communicate regulation also matters a great deal. Typically, any kind of corporate initiative will have months or years of lead time, associated capital raises and associated investments, some of which may be non-recuperable, for example, if ground has been broken on a project. Disrupting those unnecessarily is something to be deplored because it is a pure loss to all parties.

In my view, companies can thrive under a variety of regulatory regimes, but the commission has an obligation not to put its thumb on the scale and always to act in the public interest.

As against that, communication with the industrial players and with trade groups is very important, including timely and constant engagement so that they don’t get a misperception of what is coming regulatorily and don’t wind up making investments that are unproductive or, on the other hand, canceling investments that will be productive. 

B+C: Are there particular issues you want to focus on at the commission? 

NS: Absolutely. I am interested in certain public safety questions that I think could be addressed by regulatory reform in the spectrum arena. I’m not ready to talk in any more detail about that, but that is something I plan to work on during my tenure.

In addition, I am interested in the larger question of the relationship between the commission and executive branch agencies. As everyone knows there has been significant conflict between various executive agencies and the FCC. I think this is a completely nonpartisan issue and speaks instead to quality of governance. I am excited to engage with the executive branch agencies on this question and, again, watch this space for more detail.

Finally, I am interested in helping put the pieces together for a successful transition to a 5G economy. The focus here can’t just be on spectrum and it can’t just be on wireless regulation. It has to include a national policy that supports all of the necessary infrastructure, whether that is wired infrastructure or whether that is legal infrastructure in facilitating commercialization and exploitation of spectrum, whether that is integration of other technologies — unlicensed spectrum, or microwave transmission with low-earth-orbit satellites. My point is there are a wide variety of technological and infrastructure integration that’s needed to make the 5G transition happen. 

One last thing that I think needs to be emphasized more in public is that in addition to the consumer benefits of 5G, it is showing much more promise than 4G in industrial and agricultural applications, as well as public-safety applications.

B+C: And no nationalized 5G network?

NS: People talk about national 5G and nationalized 5G quite a bit. I think the suffix makes a big difference. 

Nationalized 5G sounds like moving away from the commercial model. I would strongly, strongly push against that. The commercial model served America very well in the 4G transition and I never hesitate to point out how well our networks have handled the strain of 2020 or how American’s appetite has just grown radically.  So, national 5G is a different question. When you take the suffix off it is not clear that anyone knows 100% what that means. If it means a transition to having a high quality 5G service nationwide supporting both consumer and other applications, then by all means let’s talk about how to do that. If it means a radical change in our model of allocating and licensing spectrum or some other strategy that is going to fix what isn’t broken, then I would have to say that I am against it.  

B+C: What is the best way for the government to promote broadband adoption and should broadband speeds or affordability — including price regulation — be part of that conversation?

NS: That is a great question, which I say because it is a question that is simple to ask but just meditating on it can lead you down a number of paths. 

As far as price regulation for broadband, I think that is a little bit of a dangerous route to go down. Price regulation can be seen as a way of immediately capturing benefits for the consumer because they are able to get more of the upsides of a given infrastructure investment than they would have been able to otherwise. But if it has chilling effects on further infrastructure investment then you can wind up capping the structural ability of that sector to absorb capital and, if that is the case, then that one-time bonus is never going to be repeated.

I think allowing the price to float is only a concern if we think we are getting to a regime of price-gouging. I would have to be persuaded of that pretty vigorously before I believed that was where we are, though, again, I am always open to being shown the argument, and the figures.

As far as other aspects of how to roll out broadband better, I think that it is clear that more Americans have more and better broadband than has ever been the case, and this is true year after year. So, again, this becomes a question of progressing to the end of that and identifying the remaining obstacles.

I am very excited about the proliferation of broadband technologies in just the past few years. LEO (Low earth orbit) satellites were the number two winner in RDOF [the FCC’s Rural Digital Opportunity Fund subsidy auction] and you have heard great things from very remote and underserved communities that suddenly find themselves with broadband where they had nothing prior.

So that is an example no one would have predicted a few years ago. But keeping our thumbs off the scale has allowed investors to find enough confidence in this to make the billions of dollars in investment up front to make it happen.

On the other hand, RDOF has also enabled many small and local companies to engage in buildouts that they otherwise would have been too undercapitalized to take a risk on. 

As far as broadband speeds, it is definitely important to nudge those upwards in terms of what the federal government will support or pay for. The 10/1 that we all accepted as good broadband performance sometime in the past is totally unacceptable.  Well, “totally unacceptable” is a strong phrase. They are not acceptable for funding purposes for many federal programs. I think I can say that without prejudging anything.

So I think the sliding-scale approach in RDOF [higher-speed buildouts have an edge over lower-speed applicants] is a good sign of how to address it. It is better to have something than nothing. I think it strikes a good balance between getting connectivity where it needs to be and avoiding gold-plating and excess capacity construction.

B+C: You have said the public interest must be placed first. How do you determine what that interest is?

NS: Our first obligation is to the well-being of American users and consumers of telecommunications services. As to determining what concrete actions will best carry that out, that is always a tough question and it is always heavily implicated by the facts on the ground.

Ultimately, it is difficult to tie it to a single principle because of the diversity of interests that are likely to be concerned. So, the best thing to do is to have the fullest information possible, always keep an open mind, and always communicate early and effectively.

In some cases, there will be an established base for a technology that the commission is not internally wild about, but those people have a legitimate interest in the technology that they are familiar with and in the regulatory standards around which they build their lives. 

They say that business is war and there are aspects of that where industry is constantly competing for access to spectrum or for access to favorable regulatory treatment. So, you have to respect the first, but also the second and third, order impacts of the decisions you make.

B+C: You talked at your nomination hearing about balancing the rights of television companies as part of the public interest. What did you mean?

NS: Let’s talk about television specifically. You have a hugely dependent base that varies widely in its ability to access other forms of information and entertainment. For example, there are some communities that consider themselves well-served by a well-functioning and secure local broadcaster and where there are very few cord-cutters. In other communities, you have widespread cord-cutting and browsing among a wide diversity of media. So, a regulatory approach that is only based on one is likely to leave the other out in the cold. Or, if we look and the provision of entertainment generally, prejudging the method by which people are likely to consume media is likely to leave you several steps behind the curve. 

B+C: Sen. Blumenthal also said at the vote on your nomination that you lacked the candor and independence required for your position. You were not there to respond, would you like to now?

NS: Yes, certainly. I fully respect Senator Blumenthal and appreciate that he made his concerns known to the public, but I don’t happen to agree. I believe any comments about lack of candor may refer to his question about whether I had participated in a forum sponsored by Americans for Tax Reform. I was struggling to remember whether I had and answered in the negative. I got a call afterwards from someone saying, ‘Don’t you remember that one group where you talked for a couple of minutes, they were an ATR-affiliated group?’

I thought, ‘Goodness, that’s no good at all,’ and sent a correction on the record to Senator Blumenthal within a day or two. So, I don’t believe that there was any other basis for a statement about lack of candor. I don’t believe that was a lack of candor on my part and I don’t believe that anyone was materially misled and that it would have affected the nomination or the substance of the hearing in any way.

As for lack of independence, to the extent that was ever a concern, that was certainly vitiated by the transition of power.

B+C: You have been in the majority for a few weeks, but you will be in the minority soon. How do you view that role: kibitzer, persuader, loyal opposition?

NS: I think there will always be elements of all of those. The job of the commissioner is to be independent. Obviously nominees have to come from one party or the other, and the president is going to exercise his nominating power in a way that is congenial to his party, but I am looking forward to working with Democrats. 

I have been building bridges to Democrats and look forward to continuing to do so. In some cases we’re not going to agree. In some cases I may agree with the Democrats and not the Republicans. In some cases I may chart my own course. All I can promise is to make the best decisions I can possibly make based on the best evidence I can possibly put together and to extend the hand of friendship to anyone and try to persuade and where we can’t persuade one another, we agree to disagree.

B+C: Is that basically an argument for regulatory humility?

NS: I think regulatory humility is very important. So, yes, ‘regulatory humility’ is another way of saying that no regulator can possibly stand in a position of information where they are able to truly make choices for other people except when there is the necessity, just as a court would, of balancing competing interests as best you can discern them.

Generally, in my experience, when regulators have gotten too much in front of the public or have gotten too confident about their ability to know how things will develop, it often ended in tears.

So, the commission has specific mandates in each of these areas and of course has to abide by the will of Congress. But when it starts getting in front of the will of Congress or in front of the consumer market and starts making decisions for the public, I guess that is when I would invoke regulatory humility.

B+C: I believe you were the first one on the commission to weigh in on the siege at the Capitol. What is your take on it and who should be held responsible?

NS: Information is still coming out as to what the violence at the Capitol really was and who the parties were and what their motivations were. I will admit that at first it didn’t seem as serious to me as it did a day later. Of course, now we know the scope and focus and deliberateness of some of the violence and some of the plans that at least some of the protestors had, and it is very chilling. 

As to the motivation, I don’t think I have any special insight, but as a country we have to ensure that we never become subject to mob rule and that we always have peaceful transitions of power.

B+C: Did your status as an immigrant in part compel you to weigh in on the country you chose to immigrate to?

NS: I actually had a number of people ask me, ‘Are you sure you don’t want to go home after all?’ and I would like to push back on that rather hard.\ The United States has obviously had challenges recently and this one is without recent precedent. I think it is worth remembering that in the vigorous democracy of the 19th century in the United States, it was, in fact, common for political disputes to end in violence and you saw the same thing in France and the United Kingdom. I am not referring, or course, to violent revolutions but customary rough conflicts. 

Although it is horrible to see something like this happen in the United States, no country is immune to political violence and it does not vitiate any of the great accomplishments in the United States and it doesn’t make me question my decision to come here at all. It just makes me wish that I could remind all Americans what a great country this is.

B+C: In terms of interagency cooperation, you have talked about getting FCC access to some NTIA data as a way to improve broadband mapping. Are you pursuing that yet?

NS: I haven’t had a chance yet to have those conversations. So far I have focused on getting my staff up and running and ready to handle matters addressed at the first meeting. Once that is over and I am ready to breathe a little bit, I absolutely will be looking to coordinate with NTIA in more detail on a wide variety of things. I have started introductory meetings with NTIA people. Not that the FCC and NTIA don’t already communicate, but I think there is a certain amount that I can do to improve the process, whether that is on mapping or discussion of legal standards in particular issues where the two agencies don’t see eye to eye, I think there are a variety of places where that relationship could improve.

B+C: Should the FCC start taking down some of the sector-specific silos and look at the marketplace more holistically?

NS: Well, it is easy to understand why the silos exist. 

The Telecom Act put up some silos by virtue of treating different technologies differently. But now we are in a period of convergence. If you look at new broadcast [transmission] standards, for example, they are increasingly resembling interactive video-on-demand. On the other hand, if you look at what their competition is, sometimes it is delivered by very unconventional means that didn’t even exist 20 years ago. So, as far as bringing down the silos, that’s challenging because the statute and therefore the regulations are not technology-agnostic.

On the other hand, I think being able to see across the silos can sometimes expose some of their absurdities and help the commission prepare for the future.

B+C: My last question is always, what should I have asked you that you particularly wanted to talk about?

NS: One thing I would love to talk about, and maybe this is also material for future conversations, is the potential for synergies across a wide variety of technologies. I really want to emphasize that when it comes to improving broadband and wireless access, there is not really a clear split technologically the way there used to be in the past. Much of the conversation around broadband assumes wired broadband and it assumes that every wired provider is going to be a monopoly and, increasingly what we are seeing is diversity.

If you look at the convergence of technologies right now, it is, I think, it is a greater spur in the broadband era to thinking creatively about breaking down the silos and looking at the overall impact on the public of a wide variety of technologies and looking at the way that we can look at the public interest across all of those topics without getting bogged down in questions that are increasingly in the rear-view mirror. 

Sen. Majority Leader Mitch McConnell (R-Ky.) said that this week the Senate "will begin a process" of bringing the priority of reviewing and potentially revising Sec. 230 "into focus."

That came in his opening remarks on the Senate floor Tuesday (Dec. 29) as the Senate prepared to vote Wednesday to override the President's veto of the National Defense Authorization Act (NDAA), in part over its lack of amendments related to website providers' Sec. 230 immunity from civil liability over their moderation of third-party content.

Also Read: Trump Says Sec. 230 Is Election Security Threat

The President delayed signing the COVID-19 aid bill and omnibus government funding bill until the weekend, and suggested he had decided to sign them then in part because "Congress has promised that Section 230, which so unfairly benefits Big Tech at the expense of the American people, will be reviewed and either be terminated or substantially reformed," he said in a statement after signing the bills, adding: "Big Tech must not get protections of Section 230!"

McConnell applauded the President's signature on those bills as well as his highlighting of the Sec. 230 issue as one of "national significance" that he [Trump] would like to see Congress tackle. McConnell said there was support on both sides of the aisle for "at least" reexamining the [Sec. 230] immunity," including the ways it benefits some of the most prosperous, most powerful, Big Tech firms."

Also Read: McConnell Moving on Simington Nomination

Since both Democrats and Republicans support such a review, though disagree over why that is necessary and what should happen next, McConnell was not breaking any new ground in beginning a process to bring the issue into focus. 

Republicans who otherwise support the President took to the floor to say that Sec. 230 was a separate issue that deserved attention but did not belong on the NDAA and his veto should be overridden.

Sen. John Cornyn (R-Tex.) said the power of social media platforms to censor speech is "troubling indeed." He said that with media outlets and other alternatives fading away, more people are relying on Facebook and Google and other internet platforms to get their information." He said they have become de facto public forums and deserve the scrutiny the President wants them to get.

After tweeting: "Good news on Covid Relief Bill. Information to follow!" Sunday night, President Trump signed the COVID-19 relief/government funding bill.

The bills contain billions of dollars for broadband, more small business loans for broadcasters, and a provision making pirating video streams a felony rather than a misdemeanor.

Also Read: NCTA Praises Broadband Funding in COVID-19 Bill

Broadcasters who are part of a group will be able to count as individual small businesses eligible for COVID-19 aid loans, up to $10 million per broadcast group.

On the issue of Sec. 230, the social media immunity from civil liability for third-party content moderation, the President said he has assurances Congress will take up the issue separately. He vetoed a separate, defense spending bill in part because it lacked amendments targeted at Sec. 230 .

In a statement, the President said that "Congress has promised that Section 230, which so unfairly benefits Big Tech at the expense of the American people, will be reviewed and either be terminated or substantially reformed," adding: "Big Tech must not get protections of Section 230!"

The pledge of a review does not mean and only a promise to reform is arguably a way to give the President a chance to save face on the issue without necessarily doing anything more than both sides of the aisle have called for, which is a review of the issue and likely changes to make the section less of a blanket immunity.

Trump said he was signing the bill, but with other, apparently, face-saving caveats: "I will sign the Omnibus and Covid package with a strong message that makes clear to Congress that wasteful items need to be removed," he said. " I will send back to Congress a redlined version, item by item, accompanied by the formal rescission request to Congress insisting that those funds be removed from the bill."

Sen. Richard Blumenthal (D-Conn.) said he will put a hold on the nomination of Nate Simington for a Republican seat on the FCC until and unless he commits to recusing himself from any decision on the fate of Section 230 of the Communications Decency Act, the legal provision that gives social media networks immunity from civil liability for how they moderate their networks.

That came at a Senate Commerce Committee hearing on Simington's nomination and after Simington told Blumenthal that he had participated in the writing of the petition by the National Telecommunications & Information Administration (NTIA) to the FCC seeking modification/clarification of Section 230, and that he would support that effort if confirmed to the FCC. He pointed to the FCC general counsel's explanation of why the agency had the authority to weigh in on Section 230.

Simington also said he had had conversations with the White House about Sec. 230 when he was being considered for the FCC nomination. Simington was nominated after President Donald Trump pulled the nomination of Michael O'Rielly after O’Rielly criticized the effort to regulate Section 230 and questioned the FCC's authority to do so.

While he said it was premature to say he would recuse himself, Simington did say he would get the advice of FCC ethics officials on whether he should recuse and follow that advice, whatever it is.

Sen. Roger Wicker (R-Miss.), chairman of the committee, tried to help the nominee out by pointing out during his questioning that willingness by Simington to rely on that advice. Wicker also pointed highlighted Simington’s explanation that he was not in on the drafting of the NTIA policy, simply the editing and “blocking and tackling” of the issue, which he said meant he had only written about 5-7% of the petition. 

Top House Energy & Commerce Committee Democrats are calling on Facebook to work with, not against, an effort to improve the accountability and transparency in political ads.

Related: Social Net CEOs Get Senate Grilling

E&C Chairman Frank Pallone, Jr. (D-N.J.), joined by Communications Subcommittee Chairman Mike Doyle (D-Pa.) and Consumer Protection Subcommittee Chair Jan Schakowsky (D-Ill.), wrote Facebook CEO Mark Zuckerberg to make that plea.

Related: Facebook Targeted with Six-Figure Campaign

They were referring to a New York University research effort in which volunteers provide those researchers and journalists access to the political ads they are served on Facebook so they can investigate who is targeted by the ads and why. According to the legislators, Facebook contacted NYU demanding it stop the research by the end of next month, citing consumer privacy.

“The unfortunate timing of a letter from Facebook to the NYU Ad Observatory, which runs the Ad Observer tool, just weeks before the 2020 presidential election, raises concerns about Facebook’s commitment to election integrity,” they wrote.

The legislators say the NYU program has taken "concrete steps" to protect privacy and asked Facebook to work with them on any concerns, and suggested Facebook has a history of not wanting to work with researchers. Besides, they cited reports that the NYU ad project only uses data with the explicit permission of the volunteers.

Suggesting Facebook had lost the trust of the American people, they said that greater transparency about targeted political ads was the only way to get it back.

Facilitating election meddling is arguably Democrats' primary issue with Facebook, and one of the driving forces behind their support of revising social media's Section 230 immunity from civil liability for third-party content.

The Democratic leadership of the House Energy & Commerce Committee said the FCC has some explaining to do about chairman Ajit Pai's decision to act on the Trump Administration's request that it find a way to regulate social media, platforms Republicans argue are using their Section 230 liability immunity to censor conservative speech.

In a letter to Pai, Reps. Frank Pallone (D-N.J.), chairman of the committee, and Mike Doyle (D-Pa.), chairman of the Communications Subcommittee, demanded information on what they said was the FCC's sudden decision to move on a Section 230 rulemaking and announce it just before the election.

“The fact that this announcement came just weeks before the election, and that President Trump has pushed for this [Communications Decency Act Section 230] rulemaking, raise serious questions about the independence of the agency," they wrote. "The American people deserve to know what conversations, if any, have transpired between you, your office and the White House to ensure the integrity of the FCC,” Pallone and Doyle wrote. “Since Congress’ enactment of CDA 230 [almost 25 years ago], the FCC has played no role in implementing or interpreting this provision. It wasn’t until online platforms began fact-checking the President’s content that he and his Administration began an aggressive campaign to persuade the FCC to dictate how online platforms moderate content.”

Related: Social Nets Get Senate Grilling

Section 230 provides immunity from civil liability for social media sites' moderation of third party content.

They argued that not only had the FCC agreed to do the President's bidding under pressure from the Administration, the Administration was willing to retaliate against those who don't get with the program. 

They cited, as had Democrats in a Section 230 hearing in the Senate the same day, the President's abrupt pulling of the nomination of FCC commissioner Michael O'Rielly after he criticized the effort to regulate social media, then nominated Nathan Simington to the post, who according to reports worked on the petition seeking the FCC Section 230 rulemaking. They said that not long after Trump tweeted "at" Sen. Roger Wicker (R-Miss.), chairman of the Senate Commerce Committee that they should confirm Simington, Wicker scheduled a confirmation hearing (Nov. 10).

They said it looked like the FCC was working with the Administration to "influence" online platforms by advancing the rulemaking.

They wanted responses to the following:

"Has anyone from the White House, Executive Office of the President, the NTIA or Department of Justice contacted FCC regarding this Section 230 rulemaking? If so, what was discussed?

"Has anyone from the Trump campaign contacted FCC regarding Section 230?

"Has Chairman Pai or his staff contacted either the White House or the Trump campaign regarding Section 230, and if so, what was discussed?"

They said that "contacted" included Administration requests about the status of the item, queries that would not have to be disclosed under ex parte rules. 

The FCC had not returned a request for comment at press time.

Verify and trust appears to be Big Tech's answer to threats of regulation over their moderation of content.

Social media CEOs faced a gauntlet Wednesday (Oct. 28) at a highly anticipated and hotly charged hearing whose title signaled the tenor of the exchanges with the Republican majority: "Does Section 230's Sweeping Immunity Enable Big Tech Bad Behavior?"

Facing that hearing gauntlet, if remotely, were Google CEO Sundar Pichai, Twitter CEO Jack Dorsey, and Facebook CEO Mark Zuckerberg. While all three defended Section 230, all also agreed that it was "reasonable" to hold their platforms liable for content they had created.

Related: Trump Tackles the Edge

Section 230 provides social media sites immunity from civil liability for how they moderate most of the third-party content on their sites, including if they take down or block content they consider objectionable. It is the current hot button issue in D.C., the subject of this hearing, and others if the House Energy & Commerce Committee Republicans and Senate Judiciary Committee majority have anything to say about it.

The CEOs focused on advocating for greater transparency and oversight, either on their own dime or with the help of government, that would show they were exercising the "good faith" content moderation that the section protects, rather than the political bias or censorship they have been accused of by Republicans. 

Related: Justice Unveils Legislation to Regulate Social Media

Increasing trust and accountability, rather than decreasing Section 230 protection, was the thrust of their arguments.

There may have been a question mark in the title of the hearing, but Republican legislators appeared to have drawn the conclusion that their behavior has been bad and Section 230 is the culprit. "The time has come for that free pass to end," Committee Chairman Roger Wicker (R-Miss.) said of the section.

Republicans focused on the censorship of conservative speech they have long asserted. Democrats focused more on election security online than the Section 230 issue, with Sen. Amy Klobuchar (D-Minn.) saying that the Republicans had politicized what should be a bipartisan inquiry. Ranking member Maria Cantwell (D-Wash.) warned about prematurely getting rid of Section 230 and thus "squashing free speech."

Democrats also challenged the legitimacy of the hearing itself. 

Sen. Richard Blumenthal (D-Conn.) said the hearing was meant to intimidate and browbeat the platforms in advance o an election for labeling President's tweets on COVID-19 and election misinformation. He accused the President and Republican's of planning their own disinformation campaign related to the election, including potentially saying the election was rigged or ballots should not be accepted. 

Sen. Brian Schaatz (D-Hawaii) agreed, and for the first time in his tenure in the Senate said he would not ask any questions because the hearing was a "sham" and "nonsense," a chance to bully tech CEOs into doing a "hit job" for the President in advance of the election.

Sen Ed Markey (D-Mass.) said anti-conservative bias was not a real problem, but part of the Republican efforts to bully Big Tech into leaving up harmful and misleading content.

Related: Group Seeks Federal Protection for Journalists

He also suggested that intimidation campaign included the President's withdrawl of the nomination of FCC Commissioner Michael O'Rielly after he criticized the Administration effort to regulate social media, and FCC Chairman Ajit Pai's announcement that the FCC would, indeed, clarify Section 230 as the President had asked.

(FCC Chairman Ajit Pai was also invoked in the hearing.  Sen. Wicker pointed to some Pai tweets that drew attention to the anti-Israel sentiments that Twitter had not taken down.)

Sen. Schatz said he would be glad to participate in good faith hearings on the topic of Section 230 and other issues after the election.

Ranking member Maria Cantwell (D-Wash.) focused not on Sec. 230, but on Russian election interference and using those platforms for disinformation. She said she wanted to know what could be done in terms of transparency so there could continue to be a diversity of voices without that misinformation. 

She also said privacy was another non-Section 230 issue she was concerned about.

But Cantwell said she has issues with Big Tech as a "choke point" for local news. She said too much control of the ad market by Big Tech hurts the ability of news outlets to grow in the digital age. Wicker said he shared her concerns about local journalism.

Twitter CEO Jack Dorsey said his company was willing to take further steps to demonstrate that it is moderating content in good faith, a key to the Section 230 immunity shield and what he said was Washington's main issue with social media, but that if that shield is instead eliminated, it will remove speech from the Web.

Sec. 230 provides its shield for "good faith" moderation, even of constitutionally protected speech.

Dorsey offered up a three-part solution to the issue giving users and Washington confidence that it is moderating in good faith: 1) transparency about how decisions are made, 2) an appeals process for those decisions, and 3) more consumer control over algorithmic choices.

Google CEO Sundar Pichai said that the internet has been a powerful force for good, aided by Section 230 protections, which he said have been foundational in U.S. tech leadership. He said the company supported government efforts so long as they protected free access to information and warned of the potential consequences to that model of changes to Section 230.

Facebook CEO Mark Zuckerberg, after technical difficulties in his remote appearance that prompted a brief recess of the committee, said private companies should not be making all the content calls without some help and guidance because there are real and reasonable disagreements over where the limits of online speech are.

Section 230 allows the removal of content that is "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable," that last one being the category that provides social media sites the most leeway to make such content line calls.

Zuckerberg said he advocated a more accountable content moderation process and that his company has already taken steps to do so.

But both Zuckerberg and Dorsey warned against limiting the "otherwise objectionable" definition. Both said that could limit their ability to remove harassing or bullying content, their ability to provide a platform where its users feel safe to express themselves, and would make people want to leave their online conversations.

Republicans pressed Dorsey and Zuckerberg on why tweets from a world leader denying the holocaust or advocating violence against Israel were left up, but tweets by President Trump had been blocked.

On that issue of social media site blocking, Wicker pointed out that these companies were the same ones advocating for net neutrality rules against blocking and throttling content, while Big Tech was doing just that online.

Sen. Klobuchar brought up the issue of algorithms driving divisive content, like conspiracy theories, to get eyeballs, as a former top Facebook executive has alleged. Zuckerberg said he did not agree with that characterization and suggested Facebook was more about connecting with your cousin. Klobuchar was not assuaged.

Sen. John Thune (R-S.D.) said Silicon Valley CEOs should not get to be the referees of truth. Zuckerberg said he did not want that role. Dorsey said they were not the ref. Pichai said they did make content decisions to maximize freedom of expression.

Thune said they were not the refs and needed to be more transparent so its users could decide whether they were also being fair.

Related: Minority Report  Finds Big Tech Threatens Local News

He said, addressing the Democrats that use the "referee" analogy for social media moderation, that those companies are not, and should not be, the arbiters of truth.

Democrat Sen. Tom Udall of New Mexico countered that the referee they were talking about was the U.S. government being worked by Republicans to intimidate social media.

Raising the New York Post article, Thune asked Zuckerberg to provide the committee with newspaper articles that had been limited/censored and an explanation of why. Zuckerberg said he would follow up to discuss that. Dorsey said his company was willing to discuss that and provide more information, which will lead to more accountability and transparency (which is the route the CEOS are trying to go to head off a major Section 230 remake).

Asked by Sen. Ted Cruz (R-Tex.) whether Twitter had the power to influence election, Dorsey said no. Cruz asked again, saying that when it "silences and censors" information, Twitter isn't potentially affecting an election. Dorsey again said no. Cruz called the answer "absurd on its face."

Sen. Ron Johnson (R-Wis.) asked the question again, and Dorsey again said no.

Related: Trump Tackles the Edge

During her questioning, Cantwell brought up the issue of the Big Tech "chokehold" on local news, saying that 30%-50% of ad dollars that could be going to local broadcast news was being siphoned off by Google.

Pichai said that the internet had indeed been a tremendously disruptive force, exacerbated by COVID-19, and that the net is providing alternate sources for ad revenues. But he pointed out that Google sends a lot of traffic to news publishers. He also asserted, as he has before, that Google shares the majority of revenue from their content with news publishers. Cantwell said she did not think that was the case and that while it had indeed been a rocky transition for broadcast TV news outlets, they should get fair return on their valuable content online.

Democrats on the Federal Communications Commission are taking issue with chairman Ajit Pai's announcement last week that the agency would clarify edge providers' Section 230 immunity from civil liability over third-party content, as the White House has asked. Pai also said he has been assured by commission lawyers that it has the authority to do so.

That came during a public meeting Tuesday (Oct. 27) in statements on the FCC's defense of its network-neutrality deregulation order.

Democrats pointed out that the FCC had cited Section 230 of the 1996 Communications Decency Act in defending its elimination of net neutrality regulations and its adoption of an "information services" definition for internet access that squared better with Section 230's grant of immunity that allowed the marketplace more freedom.

Section 230 allows social media sites to host third-party speech without being subject to legal action based on the content that is posted or what they do with it.

Senior Democrat Jessica Rosenworcel pointed out that Section 230 had been in the news lately as "we all grapple with the frustrations of social media."

Related: FCC Will Clarify Section 230

Some of those include Republican legislators claiming censorship of conservative speech, Democrats claiming promotion of hate speech and the facilitation of election interference, and President Donald Trump's claim that Big Tech is out to un-elect him.

But Rosenworcel said the FCC was trying to have it both ways in upholding its net dereg and pursuing its Section 230 clarification. 

“Three years ago, the FCC insisted that Section 230’s references to a competitive, free market for the internet compelled this agency to roll back net neutrality," which she called "bunk" then and now. "But now the agency’s approach to Section 230 is even more confounding. Because following a push from the Administration, the FCC has reversed course. It now insists that this provision of the law compels the agency to regulate certain speech online. In the end, it’s not just the hypocrisy that disappoints, or the intellectual contortions required to make sense of this. It’s the dishonesty. It can’t be that the FCC points to Section 230 to disavow authority over broadband but then uses the same law to insist it can turn around and serve as the President’s speech police."

Fellow Democratic commissioner Geoffrey Starks echoed that sentiment.

"I’m struck by the majority’s inconsistency in affirming the RIF Order even as the Chairman has announced his plan to circulate a rulemaking on Section 230,” Starks said in his meeting statement on the RIF item, from which he dissented. “After all, in the RIF Order the majority pointed to Section 230 as evidence of Congress’s intent that broadband should receive a 'free market approach' as an information service.

“It’s absurdly ironic that some of net neutrality’s strongest opponents now argue that the commission should interpret Section 230 to control the speech of private companies,” Starks added. “These pieces don’t fit together. You can’t pretend to have a light-touch regulatory framework when you’re proposing to regulate online content with a heavy hand. This ideological about-face shows that the imminent Section 230 rulemaking is more about pleasing the President than making good policy."

Pai has explained his decision to proceed with a Section 230 rulemaking this way: “Throughout my tenure at the Federal Communications Commission, I have favored regulatory parity, transparency, and free expression. Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”

The critics of Section 230, and they have been multiplying in recent weeks, have a friend in high places: the U.S. Supreme Court.

Justice Clarence Thomas has weighed in strongly on the side of those who argue the lower courts have stretched the section beyond its original statutory meaning, something judicial conservatives, which would include Thomas, have issues with in general. He may even have a like mind in the judge likely to become newest member of the court.

Thomas has an issue with Section 230 specifically, and is rooting for an opportunity to take it up in the Supreme Court. His commentary on the Hill and by FCC chairman Ajit Pai as the issue burned hot in the runup to the Nov. 3 election.

Section 230 is the provision of the Communications Decency Act that grants social-media sites like Facebook and Twitter immunity from civil liability for how they choose to moderate third-party content, either taking down content some might argue should stay up, or leaving up content that others think should come down. It’s actually the only provision left after the rest of the act was struck down by the courts.

Wide-Ranging Effects

Changes to the provision could affect not only social-media giants, but the comment sections on TV station websites and internet service providers that arguably are covered under the “computer services” definition of those subject to the section.

RELATED: Barrett Could Help Take a Bite Out of 'Chevron'

The FCC has signaled it plans to follow President Donald Trump’s lead and “clarify” the section, apparently in a way that will regulate third-party content within Section 230. That will almost certainly be taken to court by tech giants who have plenty of money to wage a legal war and who have argued that if they become liable for social media content on their sites, it could chill speech or blow up their business models entirely.

That means the issue could well wind up in the Supreme Court.

The issue has become a flashpoint because it has driven political opposites together in questioning whether tech giants need or should get that blanket immunity, and whether that shield has been used to protect sex trafficking, meddling in elections, censorship and more. But it has also divided them over whether the section is being used to censor conservative speech by the liberal-leaning Silicon Valley set.

The president, in part driven by his ire at Twitter for flagging and burying some of his tweets as violations of its policies against misleading speech, wants Section 230 reined in or eliminated. But Hill Democrats have issues with the section as well.

And so, apparently, does Justice Thomas.

Thomas outlined his issues in a lengthy commentary on the Supreme Court’s decision not to hear an appeal of a case involving Section 230. Thomas actually agreed the court should not hear that case, which dealt with whether the section provided immunity for content blocking technology, but apparently felt strongly enough about the immunity for content blocking itself to weigh in at length — usually the court simply releases a list of appeals it is denying, called the “cert” list, with no explanation.

But Thomas, who is reticent in oral argument, is not so in his periodic cert explanations.

Thomas said he was writing to explain “why, in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by internet platforms.” 

He clearly feels it does not. “Adopting the too-common practice of reading
extra immunity into statutes where it does not belong, courts have [granted] sweeping protection to Internet platforms,” Thomas said.

He argued that “paring back the sweeping immunity courts have read into Section 230” would not ipso facto lead to defendant liability. “It simply would give plaintiffs a chance to raise their claims in the first place,” he said.

On the other hand, he said, extending the clause beyond its statutory underpinnings, as he argues has happened, has “serious consequences.”

Critics of Thomas’s view see serious consequences as well.

Holding websites liable for content they edit in any way, as Justice Thomas proposes, could, conversely, discourage websites from attempting to make hard calls, such as by blotting out objectionable words, including racial epithets, while leaving other content up,” said Berin Szóka, senior fellow at tech policy think tank TechFreedom, in reaction to what he called Thomas’ unwarranted judicial commentary.

RELATED: Barrett Would Consider Cameras in High Court

Attorney Floyd Abrams, who has argued over a dozen cases before the Supreme Court, agrees that kneecapping Section 230 would definitely chill speech. “The easiest way that the Twitters of the future can avoid problems like this is not to fact check, no matter how false the information is, no matter how outrageously false the information is,” he said in an interview with Sirius XM radio following release of the executive order back in May.

Thomas may have support from the judge expected to become the court’s newest member. 

Topic at Barrett Hearings

During her Supreme Court confirmation hearing Sen. Josh Hawley (R-Mo.) tried to get Judge Amy Coney Barrett to weigh in on the section, citing Thomas’s comments. 

Citing Thomas, Hawley said that the courts, at the behest of Big Tech, had dramatically rewritten the section, including changing the liability standards and the distinction between publisher and distributor liability, and extending it to product defect claims.

Barrett said she had not ruled on a Section 230 case, but when asked, in general, what she thought the “danger” was of courts departing from statutory text and substituting their own judgment, she weighed in. 

Barrett said that without respect to the specific section, the danger of courts going beyond the language of statute was that it “subverted the will of the people.” She said that since judges are not elected and serve for a lifetime, if they misconstrue or bend statutes to their idea of what would be good public policy, then it deprives the people of the chance to express the policies that they want through the democratic process."

Hawley said he was convinced that was what had happened with the courts and Section 230. 

The Senate Judiciary Committee has voted unanimously 12-0 to advance the nomination of Judge Amy Coney Barrett to the Supreme Court to a full senate vote, which has been scheduled for Oct. 26.

It was only unanimous because the Democratic members boycotted the hearing and, in a little political theater that took a page from sports venues, put in their places life size pictures of people reportedly dependent on the Affordable Care Act, which they fear an Associate Justice Barrett would help overturn in an upcoming case.

In fact, while the vote was announced as 12 yays and 10 nays, chairman Lindsey Graham (R-S.C.) said it would be recorded as a unanimous vote.

Sen, John Cornwyn (R-Texas)  said the Democratic boycott was "all for show" and an attempt to "capture a narrative that is false." He called it surreal that the other side had boycotted one of the most important votes the committee would hold.

Barrett could well help shift the Supreme Court’s view of how much deference to give decisions by agencies like the Federal Communications Commission. She has also signaled she would keep an open mind about cameras in the court.

Related: Justice Thomas Has Issues with Sec. 230

She also has issues with courts overly expanding on legislative language, as critics of Sec.230 have said is the case with that statute. When asked at her confirmation hearing about Section 230, she would not address the specific issue, but did weigh in, in general, on what she thought the "danger" was of courts departing from statutory text and substituting their own judgment, she weighed in. 

Barrett said that without respect to Sec. 230, the danger of courts going beyond the language of statute was that it "subverted the will of the people." She said that since judges are not elected and serve for a lifetime, if they misconstrue or bend statutes to their idea of what would be good public policy, then it deprives the people of the chance to express the policies that they want through the democratic process."

FCC General Counsel Tom Johnson took to the FCC blog Wednesday (Oct. 21) to defend the conclusion that the FCC has the authority to clarify ambiguities in Sec. 230, including limiting it if the commission votes to do so.

Related: FCC Will Clarify Section 230

FCC chairman Ajit Pai announced last week the FCC would respond to President Trump's petition--filed by the National Telecommunications & Information Administration, the President's chief communications advisor--that the FCC find a way to regulate social media's moderation of content.

The President has long argued that social media sites are using the section to shield their censorship of conservatives and has lately called for its elimination altogether.

In his blog post, Johnson said Pai's decision to proceed, which Pai had said came on the advice of FCC attorneys, "was consistent" with his analysis, an analysis the chairman has asked him to make public, he said, given the intense interest in the issue.

"The policy issues raised by the debate over Section 230 may be complex, but the FCC’s legal authority is straightforward," he said. "Simply put, the FCC has the authority to interpret all provisions of the Communications Act, including amendments such as Section 230....By expressly directing that Section 230 be placed into the Communications Act, Congress made clear that the FCC’s rulemaking authority extended to the provisions of that section."

Related: House Dems Regulate Sec. 230 Bill

He pointed out that the Supreme Court has twice ruled that the FCC's original rulemaking authority over the 1934 Communications Act extends to amendments passed in 1996, one of which was Section 230 of the Communications Decency Act (the other sections have since been struck down), which provided web sites immunity from law suits over their moderation of content on their sites.

Johnson said that authority "plainly encompasses the power to interpret ambiguous language throughout the Communications Act," then addresses various arguments against that authority.

"[C]ritics of an FCC rulemaking overread the legislative history and statements of purpose on which they rely and fundamentally misunderstand the narrow authority involved in clarifying the scope of the Section 230 immunity shield," he concluded, and in any event don't bear on the central question of whether the FCC can interpret ambiguous terms, which it can, he said, and without creating net neutrality rules for edge providers or a new "fairness doctrine," as some critics have suggested.

He said even if the FCC chose to narrow the immunity shield (which is likely), "that would not result in additional FCC regulation. It would simply allow private parties to bring lawsuits, as appropriate, under other sources of federal and state law—the same generally-applicable causes of action that apply to newspapers, broadcasters, and other publishers and speakers not covered by Section 230."

He said the fact that courts have been interpreting, and critics said overly expanding, section 230 for years does not mean the FCC can't be an authoritative voice on the section's ambiguities and whether those courts have properly interpreted its scope.

Top Senate Commerce Committee Republicans have put out a handy guide to understanding Section 230 reform ahead of a hearing Oct. 28 with the CEOs of Facebook, Google and Twitter and with the goal of determining whether the section has outlived its usefulness.

Section 230 is the law that gives edge providers immunity from civil liability over most of the third-party content posted on their platforms.

The guide was tied specifically to legislation introduced earlier this month, the Online Freedom and Viewpoint Diversity Act, by Senate Commerce Committee Chairman Roger Wicker (R-Miss.), Sen. Lindsey Graham (R-S.C.) and Sen. Marsha Blackburn (R-Ten.).

Related: Hill Ponders Taking Tougher Stance on Tech

That bill will be among the topics of conversation with Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai and Twitter CEO Jack Dorsey.

The bill would:

1. "Clarify when Section 230’s liability protections apply to instances where online platforms choose to restrict access to certain types of content;

2. "Condition the content moderation liability shield on an objective reasonableness standard. In order to be protected from liability, a tech company may only restrict access to content on its platform where it has “an objectively reasonable belief” that the content falls within a certain, specified category;

3. "Remove “otherwise objectionable” and replace it with concrete terms, including “promoting terrorism,” content that is determined to be “unlawful,” and content that promotes “self-harm.”

4. "Clarify that the definition of “information content provider” includes instances in which a person or entity editorializes or affirmatively and substantively modifies the content created or developed by another person or entity but does not include mere changes to format, layout, or basic appearance of such content."

A pair of House Democrats have introduced a bill that would take a new tack on reforming Section 230, the provision that grants immunity to social platforms for most of the content on their sites, targeting online algorithms they argue facilitate offline violence.

Reps. Anna Eshoo (D-Calif.) and Tom Malinowski (D-N.J.) on Tuesday (Oct. 20) introduced the Protecting Americans from Dangerous Algorithms Act, which would attempt to hold large web platforms (50 million or more users) accountable "for their algorithmic amplification of harmful, radicalizing content that leads to offline violence."

The bill would amend Section 230 to remove immunity if an algorithm "is used to amplify or recommend content directly relevant to a case involving interference with civil rights (42 U.S.C. 1985); neglect to prevent interference with civil rights (42 U.S.C. 1986); and in cases involving acts of international terrorism (18 U.S.C. 2333). 42 U.S.C."

Those cases are central to a suit filed against Facebook alleging it facilitated "militia violence" in Wisconsin and another against the social media giant for allegedly facilitating terrorism.

A former Facebook exec told House members at a hearing last month that the site, at least in the past, was designed to promote content that drives engagement, even if it was misinformation, conspiracy theories and fake news. 

Tim Kendall, Facebook's first director of monetization and former Pinterest president, told the legislators at the hearing that Facebook and other social media sites "worship at the altar of engagement and cast all other concerns aside, raising the voices of division, anger, hate and misinformation to drown out the voices of truth, justice, morality, and peace."

Republicans are also pushing for Section 230 reforms, but Eshoo and Malinowski say their bill is different because it preserves the core of the section that protects speech, is targeted at algorithms that promote content leading to "the worst types of offline harms," and does not seek to "mandate political neutrality."

Related: Coalition Says Safer Web Means No Sec. 230 Immunity

"I was a conferee for the legislation that codified Section 230 into federal law in 1996, and I remain a steadfast supporter of the underlying principle of promoting speech online," said Eshoo. "However, algorithmic promotion of content that radicalizes individuals is a new problem that necessitates Congress to update the law,” said Congresswoman Eshoo. "Amidst the recent flurry of politically motivated activity related to Section 230, I’m proud to partner with Congressman Tom Malinowski on a serious effort to respond to the specific and abhorrent problem of online radicalization that leads to offline violence."

Related: Computer Cos. Say Leave Section 230 Alone

Republicans argue Twitter's flagging of President's Trump's tweet about "when the looting starts the shooting starts" was censoring speech, while Democrats view it as flagging the sort of online content that could lead to offline violence.

On a separate track, the President is trying to get the FCC to reform Section 230, or at least its enforcement, citing censorship of conservative content though he has also called for eliminating the section altogether.

The President continues his campaign trail attacks on his perceived enemies as polls show him far behind and in danger of being on the wrong end of a lopsided election.

In remarks after his arrival in Arizona Monday (Oct. 19), President Trump called journalists criminals for not reporting that his opponent, Joe Biden, was also a criminal.

Trump was in the state for more campaign rallies, which have been characterized by lots of attacks on Biden and not much social distancing.

Related: CPJ Seeks Trump Meeting Over Press Attacks

Asked why his campaign strategy seemed to be to call Biden a "criminal," Trump said that was because Biden WAS a criminal. Then he aimed his attack at the reporter and the media in general. "Read his laptop [that would be Biden's son Hunter], adding: And you know who's a criminal? You're criminal for not reporting it.

When the reporter pressed him for the strategy behind the attacks, Trump simply repeated the charge: "Let me tell you something: Joe Biden is a criminal, and he's been a criminal for a long time. And you're a criminal, and the media, for not reporting it."

Related: FCC Will Clarify Sec. 230

There were reports the Administration might file some type of lawsuit against Big Tech related to their Section 230 immunity from civil liability over third-party content, immunity the President wants to eliminate because he says Silicon Valley uses it to censor Republicans and favor Democrats.

When told that his chief of staff, Mark Meadows, indicated a suit could be forthcoming, the President seemed surprised--"Who said that? Who said that?" he asked, then shifted gears. He said Big Tech had been given great protection, then used that shield to take down links to the New York Post story on Hunter Biden, a paper he said was a respected news outlet.

Asked again about whether a lawsuit was coming, Trump would only say: "You'll be seeing very soon."

The Senate Commerce Committee is holding one of those Big Tech hearings whose title gives away the plot:  “Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?"

The hearing is scheduled for Oct. 28 and will feature among the biggest of Big Tech witnesses: Twitter CEO Jack Dorsey, Google CEO Sundar Pichai, and Facebook CEI Mark Zuckerberg. 

Related; FCC's Pai's Commission Will Clarify Section 230

Befitting execs whose business is online, all three of the witnesses will participate remotely.

Section 230 of the Communications Decency Act provides web sites with immunity for their moderation of most third-party content. Angered by what he says is conservative bias by Big Tech outlets out to un-elect him, the President wants to get rid of the immunity. But both Republicans and Democrats have issues with the extent of the immunity.

There will be some interested Senators over on the Judiciary Committee. The Republican leadership on that committee plan to subpoena at least one of those--Dorsey--for their own hearing--and one Judiciary Member, Sen. Josh Hawley (R-Mo.) wants them to subpoena Zuckerberg as well.

Sen. Josh Hawley (R-Mo.) tried unsuccessfully Thursday (Sept. 24) to get the Senate to fast-track passage of his bill allowing individuals to sue social media companies for selectively censoring political speech. Since it was almost certain to fail--a single objection ends the fast track effort--it was more of a chance to slam Big Tech on the Senate floor.

Hawley's attempt was in the form of a motion for unanimous consent (UC), preceded by an impassioned attack on tech. The co-author of social media's Section 230 immunity, which Hawley's bill targeted, immediately rose to strenuously object as well as to complain that Hawley had not given him a heads-up that the motion was coming.

Related: GOP Senators Introduces Sec. 230-Targeted Bill

Hawley's "Limiting Section 230 Immunity to Good Samaritans Act" would limit web sites' Sec. 230 immunity from civil liability for third party content by eliminating it unless the sites "update their terms of service to promise to operate in good faith." They would also agree to pay attorneys fees and $5,000 to each Web site user if it was proved they had violated that promise, which for some Big Tech giants could amount to billions of dollars. 

Under the bill:

1. "Users could sue the major Big Tech companies for breaching their contractual duty of good faith; 

2. "The duty of good faith would contractually prohibit Big Tech from: Discriminating when enforcing the terms of service they write (just like police and prosecutors are not supposed to discriminate when enforcing the law); "Failing to honor their promises; 

3. "Big Tech companies who breach their duty of good faith would have to pay $5,000 plus attorney’s fees to each user who prevails." 

Hawley is actually not alone, either in his party or on the other side of the aisle, in wanting to reform Section 230 to require social media sites to take more responsibility for how they moderate content.

Hawley's UC motion came in a week packed with Section 230/social media-related activity. That included a hearing in the House on social media Thursday about online extremism as well as the Trump Administration's drafting of Section 230-related social media regulation legislation and meetings between President Trump and Attorney General William Barr with Republican state attorneys general about how they could regulate social media on the state level.

Hawley said in his floor statement that there was a group right now trying to manipulate the election, but it was not in China, or Russia or Iran, but the U.S.: Big Tech, the folks who run the giant digital platforms and control what news gets read, what is in the articles and what the headlines said. 

He said Big Tech relentlessly spies on Americans and tracks their locations and the web sites that are visited and the videos that are watched and what we buy, all to shape preferences and viewpoints. He said Big Tech is intent on using that information in this election. 

Related: Trump Says Big Tech Is Waging War on Free Enterprise, Expression

He alleged that leftists and liberals control Big Tech and are using their power to shape the election through escalating acts of political censorship. Censorship is "never against liberals," he said, because they don't agree with conservatives and so they don't want them elected.

Hawley said that if "woke capitalists" are allowed to silence conservative voices, Big Tech will take over elections and America itself. 

That is why he said the Senate needed to act "today" to allow Big Tech to be sued so they are not placed above the bar of the law. He called it a stand in defense of free speech, elections and democracy.

Sec. 230 author Sen. Ron Wyden (R-Ore.) rose to object--a single no means a UC does not go forward. He called Hawley's UC call one of the most stunning abuses of power he had seen, pointing out that he did not know about the UC call until five minutes before. Wyden said Hawley was trying to throw in the garbage can a law that he and a conservative Republican had written together. He said the Section 230 law was important to the MeToo and Black Lives Matter movements and that it was about "letting the little guy be heard."

Wyden said the impact of Hawley's bill would be to allow President Donald Trump to "work the refs" and "print his lies." As to Sen. Hawley wanting to take on Big Tech, he said Hawley should sign on to this privacy bill, which holds Big Tech execs personally liable if they don't tell the truth. He said he would have had more to say had he been given notice of the US motion.

Hawley responded Wyden was talking about a world that didn't exist, that Google and Facebook were not little guys. The little guys, he said, were those voices de-platformed by Big Tech because of their political views. 

The Coalition for a Safer Web, whose advisors include former Republican National Committee chairman Michael Steele and former Republican Homeland Security Secretary Tom Ridge, raked social media over the coals in its prepared testimony for a House Energy & Commerce Committee hearing Thursday (Sept. 24) on social media's role in mainstreaming radicalism.

Coalition president Marc Ginsberg told the Hill that social media companies are providing a platform for a toxic brew of extremist groups, calling the Web a safe haven for acts of domestic terror. He also provided a possible solution in the form of a social media code of conduct and enforcement board with the power to suspend social media's immunity from civil liability.

Related: Computer Cos. Say Leave Section 230 Alone

He called it a cosmic challenge that defies an easy solution, but one thing that needs to happen is recognizing that despite what they and their First Amendment advocates said in an effort not to be deemed publishers and lose their Section 230 immunity from liability for third-party content, "social media companies have become de facto publishers by taking the editor’s road they have embarked upon to subjectively decide all manner of content visibility or invisibility."

He said that to assert they are innocent bystanders to the train wreck of extremist dis and misinformation on their platforms is flat out wrong. "It is no way to run a railroad because we the passengers are the victims."

Related: Trump Officially Seeks Help to Regulate Edge

He argues that "because the business model of mainstream social media is totally dependent on ad revenue, there is no financial or legal incentive for Facebook, Twitter, YouTube, or Instagram to submit to independent oversight and accountability. They assert a mere moral obligation to engage in wishy washy content moderation. They cling to Section 230 as the Holy Grail, with good reason, because you and I know that without Section 230’s content immunity their financial models would be subject to attack for failing to protect their customers from harm." 

The coalition favors scrapping the Section 230 immunity, but Ginsberg is a realist and recognizes that a bipartisan agreement is a long shot.

Instead, it is suggesting a public/private solution in the form of a Social Media Standards Board (SMSB) overseeing a new social media code of conduct developed by "concerned citizens groups, social media companies, and the advertising industry," the last which has the most leverage over social media given its reliance on the ad-supported content model and which has already created the Global Alliance for Responsible Media (GARM). 

The coalition said Congress would need to amend Sec. 230 to delegate the SMSB the power to suspend Section 230 immunity for violations of compliance with the code, which would be the ultimate penalty. Lesser penalties could include "1) decertification from code compliance; 2) forfeiture of digital ad revenue; and 3) a referral by the SMSB for administrative action to the Federal Trade Commission."

AT&T said it supports "the growing consensus that online platforms should be more accountable for, and more transparent about, the decisions that fundamentally shape American society today," including requiring them to disclose their management practices just as internet service providers must disclose their network management.

That came in the company's comments to the FCC on a Trump administration effort to regulate social media, which it said was meant to contribute to a bipartisan dialogue on edge providers who "enjoy extraordinary legal immunities designed a quarter-century ago to protect nascent innovators, not trillion-dollar corporations." That’s a reference to immunity from liability under Section 230 of the Communications Decency Act, which platforms such as Google, Facebook and Twitter enjoy over their handling of third-party content.

It is that section that President Donald Trump, via the National Telecommunications & Information Administration, has asked the FCC to “clarify” so social media platforms can be regulated.

RELATED: Trump Tackles the Edge

When creating the immunity in 1996, AT&T said, Congress could not have foreseen courts expanding it to "confer near absolute immunity for online conduct that bears no relation" to the section's objective of reducing liability risks for platforms blocking "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable" content. It said Congress also could not have foreseen that the protection from expensive lawsuits would extend not to financially vulnerable start-ups but to "the largest and most powerful companies in the world."

AT&T said platforms should be commended rather than condemned for their innovation and success, but that success breeds responsibility and should bring accountability. Policymakers should ensure accountability in two ways, the telco said: 1) by transparency about their "algorithmic choices" and 2) "just as AT&T and other ISPs disclose the basics of their network management practices to the public, leading tech platforms should now be required to make disclosures about how they collect and use data, how they rank search results, how they interconnect and interoperate with others, and more generally how their algorithms preference some content, products and services over others." 

While AT&T said it is not asking edge providers to reveal their "secret sauce," it does think that the public should get a gander at how a dominant platform designs algorithms to goose its own vertically integrated services over the competition. 

RELATED: Free State: FCC Has Authority to Clarify Sec. 230

AT&T also said it is OK with modifying Section 230 so that it does not provide immunity when leading platforms, as they routinely do, "amplify some content over other content and shape how it appears," often for financial reasons. In that case they should not play by "radically different" rules from publishers, like TV and radio, who have no such liability immunity.

AT&T did not endorse the Trump proposal for how to reform Section 230, but it did endorse a revisit and a single set of nationally consistent rules.

"It is time for federal policymakers to step back, return to first principles, and revisit whether and when the nation’s largest online platforms should enjoy legal immunities unavailable to similar companies in similar circumstances," the company said. 

President Donald Trump is focused on eliminating what he sees as systemic bias, but it has nothing to do with racism.

Under a Trump executive order, the Federal Communications Commission for the first time would have a defined role in regulating edge providers. It’s a big change from the FCC’s hands-off approach during the previous administration, when the “gatekeeper” tag was put on internet service providers — and not on the companies that use those connections to offer their own services, like Google, Facebook or Twitter, which were basically untouchable from a regulatory perspective.

While there is bipartisan support for finding a way to ensure there is some government oversight of the most transformative technology perhaps in human history — including support from cable broadband providers — the president’s focus on online content he does not like threatens to add a layer of speech regulation that could dull the edge and even compromise its role as a marketplace of ideas.

While the order focuses on social media, law firm Wiley Rein says all the participants in online communication will be impacted by “broad and long-term legal and policy effects.”

For example, the president’s directive to develop model legislation for states to enforce his speech policies could work against efforts, backed by ISPs, to create a uniform federal approach to online privacy and commerce.

Related: Section 230: The Protection Section

Trump, in an executive order issued in May, directed the National Telecommunications & Information Administration to file a petition with the FCC, which it dutifully did late last month, to step into the regulation of web content. The FCC would be empowered to require Facebook and Google to publicly explain how they moderate their content, as well as the warnings they place on user posts like the ones Twitter placed on the president’s tweets, which would be considered content generated by the platform and not subject to the Section 230 immunity from civil liability over third-party content, an immunity the president is targeting.

Trump has long said he was looking for a way to keep social media platforms from censoring conservative speech in general. More recently, he has been critical of what he sees as political censorship of his own posts by Twitter, posts that the White House has said are official presidential statements. So, it is clearly personal.

No less a Silicon Valley maven than Facebook chairman and CEO Mark Zuckerberg has conceded there are legitimate concerns about liberal bias, but he does not think it is systemic and has said that is certainly not the case with his company.

FCC commissioner Jessica Rosenworcel, a Democrat, said Trump’s order attempts to enlist the agency in becoming what she calls the speech police, a business she doesn’t want to be in.

The White House explained the move this way: “In a country that has long valued freedom of expression, it is not acceptable for a limited number of online platforms to hand-pick speech that Americans may access and convey. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.”

Regulations Look Inevitable

Some form of regulation of Big Tech appears inevitable. Last month’s hearing in the House Judiciary Antitrust Subcommittee with the CEOs of Facebook, Amazon, Apple and Alphabet (Google) was pretty much a proverbial case of “the beatings shall commence.” Democratic leaders said the big tech firms were too powerful, that the power had corrupted them and that they needed to be regulated and, in some cases, broken up.

Related: Ordering Up Online Regulation

Even though plenty of Democrats, including at last month’s hearing, have criticized Section 230 — or have even called for its elimination — the president’s linkage of the issue with his attacks on Twitter and other sites had some of those pausing to push back with one hand, even as they shake a big regulatory stick with the other.

Questions about whether or not websites still should enjoy blanket immunity from liability have been asked by everyone from conservative Republicans, who share Trump’s suspicions about the suppression of conservative voices, to the Democratic author of the Communications Decency Act’s Section 230 (see box). Section 230 is the law that says social-media platforms bear no civil liability for most of the speech posted on their sites and gives those platforms the freedom to remove content, or not, as they choose.

Immunity under Section 230 of the 1996 law is what allowed those sites to grow from the garage to the sprawling campus, but also, the law’s critics say, allowed them to avoid the legal consequences of the hate speech, fake news, Russian election meddling and sex trafficking that finds its way onto their sites.

Social media sites argue, and with reason, that if they are liable for the millions or billions of posts they host, or for moderating them according to the perceived preferences of their community, it will be hard to sustain their business model.

But these social-media communities have become so large and powerful that what they allow or don’t allow to be posted on their sites, or how they moderate those posts, can change the national conversation and impact many millions. Many in Washington have been saying that with that power comes responsibility — responsibility that Section 230 has allowed them to dodge, unlike news publishers that are subject to such civil liability.

While the president wants the FCC get involved with social-media content calls, that could be a big ask. As influential telcom law firm Wiley Rein pointed out in a note to clients about the executive order, the FCC recently rejected a petition to investigate broadcast coverage of the president, with the explanation that the regulator is not “a roving arbiter of broadcasters’ editorial judgments.” The executive order essentially asks it to become an arbiter of edge provider content calls.

A Bipartisan ‘Techlash’

There are no easy answers. But Democrats and Republicans have clearly been moving toward regulation, or at least heightened oversight and perhaps changes in the antitrust laws to capture the speed of tech innovation and consolidation, fueled by bipartisan concerns over issues like privacy and third-party marketing of user data. While Republicans criticize social media for allegedly censoring speech, Democrats argue the sites don’t do enough to keep disinformation, including deceptive campaign ads, off their platforms.

One Big Tech critic speaking on background said social media platforms are clearly hoping that the executive order takes some of the pressure off. But he also said the “techlash” has its own momentum, likening it to a big rock rolling down a mountain with “gravity on its side.” Sen. Ron Wyden (D-Ore.), the author of Section 230, said at a hearing last year that the whole point of the section was to have a “shield and a sword,” and the sword hasn’t been used. But following the president’s executive order, Wyden came to the defense of Section 230 and how it has been functioning.

“Efforts to erode Section 230 will only make online content more likely to be false and dangerous,” Wyden said. “Section 230 does not prevent internet companies from moderating offensive or false content. And it does not change the First Amendment of the Constitution.”

Other prominent Democrats have weighed in with questions about Section 230. Presumptive Democratic presidential nominee Joe Biden apparently agrees with Trump that the section should go, telling The New York Times back in January that the section should be revoked, saying “it is propagating falsehoods.”

Sen. Josh Hawley (R-Mo.) has also called for an end to the “sweetheart deal” of Section 230. He had an unusual congressional ally in House Speaker Nancy Pelosi, who tried, unsuccessfully, to exclude Section 230 language from the USMCA trade deal among the United States, Mexico and Canada, calling the section a “gift to big tech.” She was joined in that effort to keep Section 230 from spreading by Reps. Frank Pallone (D-N.J.) and Greg Walden (R-Ore.).

Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.) are political poles apart. But they teamed up earlier this year on a bill that would amend Section 230 to say that the section's immunity for online platforms from civil liability for third-party content does not extend to child exploitation, meaning Facebook or Twitter could be held liable for posts that illegally exploit children. If that passes, it could open the door to other changes and the prospect of the death of Section 230 by a thousand cuts.

Blumenthal said Section 230 provides a unique, near-absolute immunity from legal consequences for “certain companies and activities.” The bill would remove that exemption from companies that did not earn it. (It is, appropriately, called the EARN IT Act.)

But the president’s call for remaking Section 230 has forced pushback.

Pallone joined with other Democratic legislators to stand up for Big Tech. “Online platforms should enforce their codes of conduct to combat disinformation, even when it is spread by right-wing extremists and the president himself, but the president has made clear he wants the internet to cower in fear,” he said.

And following Trump’s order, Blumenthal tweeted: “Whatever the criticisms I may have of current law, this Executive Order is an authoritarian attack against freedom of expression and accountability. This Executive Order is egregiously excessive, with clearly malevolent intent to suppress free speech. It is a blatant attempt to use the full power of the United States government to force private companies to lie for the president.”

It’s not just Democrats who are pushing back on the president. Sen. Mike Lee (R-Utah), a conservative who agrees there is anti-conservative bias — though he has also argued against siccing the Justice Department on Google and other Big Tech companies — told Fox News Channel the order would be “just terrible precedent long-term.” Lee said social media platforms were not “the government's tool to play with.”

The Committee for Justice, a Republican-backed Washington, D.C., nonprofit group, pointed out that there are legitimate concerns that “content moderation policies on certain social media platforms have a disparate impact on conservative expression and sometimes result in outright anti-conservative bias,” including Twitter’s “singling out” of the president, according to committee president Curt Levey.

But Trump’s approach to those issues had Levey sounding more like Democratic FCC commissioner Rosenworcel following the executive order’s release. “Government regulation of private companies’ content moderation policies is a greater threat than the problem it seeks to address,” Levey said.

Republican FCC member Michael O’Rielly’s public raising of the First Amendment issues with regulating social media may have cost him his renomination, which the president has withdrawn.

Pushback on Both Sides

While the immediate pushback on the president from Democrats provided some hope in Silicon Valley that the regulatory tide might be turning, some of the highest-profile Democrats remained resolute.

The Biden campaign told The Verge his position in support of eliminating Section 230 has not changed, and Pelosi said that the president’s order was a “desperate distraction,” but also continued to hammer the edge, saying: “Social media platforms have sold out the public interest to pad their corporate profits. Their business model is to make money at the expense of the truth.”

And the president wants to know just how much money. He gave federal agencies until June 27 to report on what they are spending on online advertising and marketing, and on which platforms. The Justice Department will now determine which of those are “problematic vehicles for government speech,” meaning government dollars.

Related: FCC As Edge Regulator

But the principal problematic vehicle is the executive order itself, said Jon Epstein, a partner at law firm Hall Estill, who has advised clients on the risks of social media. "The EO is troubling to those who believe that the Section 230 protections are necessary and that use of the platforms should not be censored based on government officials’ political viewpoints.

“During his campaign and since he was elected, President Trump has engaged in a heated conflict with reporters and media platforms who have criticized or questioned him,” Epstein continued. “[W]e are on the verge of the battle that the President appears to have sought.”

Section 230 is the surviving section of the 1996 Communications Decency Act, the rest of which was ruled unconstitutional by the U.S. Supreme Court.

It allows social media sites to host third-party speech without being subject to legal action based on the content that is posted or what they do with it, either taking it down despite complaints from individuals, corporations or governments, or leaving it up despite such complaints.

As the Electronic Frontier Foundation put it, Section 230 “has allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users.”

Related: Cover Story: Trump Tackles the Edge

In a note to clients, attorneys at Wiley Rein explained the specific legal protection that Section 230 affords online service providers:

“Section 230 protects interactive computer service providers such as social media platforms in two ways. Under Section 230(c)(1), ‘[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’ This means that interactive computer service providers are free to host third-party content without being liable for the substance of that content.

“Section 230(c)(2) establishes an additional liability shield for users and providers of interactive computer services who moderate their content, immunizing them from suit for ‘any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene … or otherwise objectionable.’

“As the Ninth Circuit has explained, these two subsections provide independent protections for providers: “even those who cannot take advantage of subsection (c)(1), perhaps because they developed, even in part, the content at issue … can take advantage of subsection (c)(2) if they act to restrict access to the content because they consider it obscene or otherwise objectionable.”

Reddit has dropped its The_Donald subreddit, an influential pro-Trump community, for alleged "hate speech" and harassment.

The_Donald boasts more than 790,000 users who post memes, viral videos and supportive messages about Mr. Trump.

“Reddit is a place for community and belonging, not for attacking people,” said Reddit CEO Steve Huffman, in a call with reporters, an event covered by The New York Times. “‘The_Donald’ has been in violation of that.” 

The move came simultaneously to Amazon's Twitch kicking the president off its platform for alleged "hateful conduct." Twitch cited two offending videos, one of which featured footage from Trump's Tulsa, Okla., rally during which he described Mexican nationals as "bad hombres."

“Hateful conduct is not allowed on Twitch. In line with our policies, President Trump’s channel has been issued a temporary suspension from Twitch for comments made on stream, and the offending content has been removed," Amazon said in a statement.

Ironically, the president has been calling on social internet platforms to take more responsibility for moderating their content, but his goal has been to cut down on the censorship of conservative speech.

The moves follow Facebook's decision to start removing or labeling content related to the upcoming election or that incites violence, which in turn follows Twitter's labeling of tweets by President Trump as inciting violence and not relaying accurate information about elections.

That drew strong pushback from the President and was seen as, in part, a spur to his executive order seeking the help of Congress or the FCC or both to regulate social media content and alter or eliminate web sites' Section-230 immunity (via the Communications Decency Act) from civil liability over how they moderate third-party content posted on their sites. That allows them to remove most content, or leave it up, without fear of being sued.

Reddit reserves the right to ban communities, but it is a last resort, literally, on its enforcement policy. As to hate speech: "Communities and users that incite violence or that promote hate based on identity or vulnerability will be banned," it said.

A quartet of Republican senators aren't waiting for the Commerce Department to petition the FCC to get into the issue of rethinking social media's exemption from civil liability over their moderation of third party content. 

That came in a letter to FCC chair Ajit Pai from Sens. Marco Rubio (Fla.), Josh Hawley (Mo.) (pictured above), Kelly Loeffler (Ga.) and Kevin Cramer (N.D.). 

The senators cited President Trump's Executive Order on Preventing Online Censorship, which mandates that Commerce's National Telecommunications & Information Administration ask the FCC to come up with a framework for exempting censorship of political speech from that so-called Sec. 230 exemption. 

"It is time to take a fresh look at Section 230 and to interpret the vague standard of 'good faith' with specific guidelines and direction," they said, echoing Trump's order. 

"We therefore request that the FCC clearly define the framework under which technology firms, including social media companies, receive protections under Section 230," they wrote. 

Pai Tuesday (June 9) declined to comment on the FCC's role in that issue, saying he did not think it was appropriate given that the FCC is awaiting the petition for rulemaking. Once that is filed, Pai will almost certainly not comment either since he generally makes it a practice not to comment on issues that are before the commission.

The Association of National Advertisers is going to wait to pass judgment on the impact on ANA members of President Donald Trump's executive order seeking to eliminate social media censorship of political speech, but ANA General Counsel Douglas Wood is making it clear he "abhors" the order. 

Related: Trump Issues Social Media Executive Order

Wood said in a statement released by ANA that, as a legal matter and a First Amendment matter, politicians are free to lie and websites are free to censor those constitutionally protected lies. "If a platform is following the rules it adopted in good faith, it is free to censor. They are private enterprises, not the government. 

But that freedom of liability from censoring protected speech comes from Sec. 230 of the Communications Decency Act, which is the section the President wants Congress to eliminate and, in the interim, wants the FCC and the Federal Trade Commission and Justice Department, to clarify--and weaken--the section.  

Or, as Wood puts it, "[I]f the platforms continue to censor speech that the platforms deem misleading (or place tags on a post that cast doubt on its accuracy or refer users to other information) they will face the wrath of the DOJ, FTC, and God only knows whom else." He said that the "weaponizing" in the President's executive order is "an improper government intrusion on free speech." 

Related: Trump Social Media Order Gets Mixed Review

"So, if Facebook decides tomorrow that it wants to crack down on political lies – by Democrats or Republicans –it is free to do that," says Wood. "And properly so. Nor is it the government’s role to decide when those decisions are fair or discriminatory. That is not a standard of oversight authorized under the First Amendment. If it were, then free speech would change like the wind with every change in the Administration or shift in Congressional control." 

Wood said that while he may not agree with or like the policies of Facebook or Twitter or other platforms, and recognizes the threat those powerful players pose to the common good if they act irresponsibly, but said that if he has to choose between those and government arbitration of what should and shouldn't be said, it's "no contest."