NTIA Sued Over FOIA Request for Sec. 230 Communications

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Conservative group Americans for Prosperity Foundation is suing the Department of Commerce over the National Telecommunications & Information Administration's (NTIA) response to requests for documents on the NTIA Sec. 230 petition to the FCC. (NTIA, President Trump's chief communications policy adviser, is under Commerce.)

That is according to a copy of the suit obtained by Multichannel News.

The group wants documents including e-mails and text messages from, among others, newly minted FCC Commissioner Nathan Simington when he worked on the petition while at NTIA, as well as NTIA Deputy Assistant Secretary of Commerce Adam Candeub.

Also Read: FCC Nominee Simington Reached Out to Fox News on Sec. 230 Petition

The suit alleges NTIA: 1) failed to comply with statute, 2) failed to disclose non-exempt records that were responsive to its FOIA request, and 3) failed to conduct a "reasonably adequate search."

The FOIA request at issue specifically "concerns all communications sent or received by NTIA Senior Advisor Nathan Simington or Acting Assistant Secretary of Commerce for Communications and Information Adam Candeub, relating to Section 230, the Federal Communications Commission ('FCC'), and other search terms."

The AFP Foundation (AFPF) is on the record opposing the NTIA petition, which was mandated by President Trump and is intended to get the FCC to regulate social media via those sites' Sec. 230 immunity from civil liability over their moderation of third-party content. It filed comments in the FCC's Sec. 230 document opposing the petition.

In the suit, being filed Tuesday (Dec. 15) in a D.C. U.S. District Court, the group says NTIA has not sufficiently responded to its Freedom of Information Act (FOIA) of last September.

“The limited documents NTIA has disclosed from our FOIA contain numerous redactions, raising serious concerns about what NTIA is withholding," said AFPF Policy Counsel Eric Bolinder. "Mr. Candeub’s use of a private email for government business only heightens this concern. NTIA has also refused to release all the communications we requested, blocking our access to agency text messages. As Mr. Candeub and his colleagues pressure the FCC and others to restrict our nation’s speech laws, the public has a right to know who is lobbying him. FOIA requests are intended to provide the American public with transparency from their officials and this level of evasion is alarming.”

In the September FOIA request, AFPF asked for "all communications sent to or from either National Telecommunications and Information Administration ('NTIA') Senior Advisor Nathan Simington or Acting Assistant Secretary of Commerce for Communications and Information Adam Candeub" featuring various key words and phrases including section 230, Federal Communications Commission or FCC, and [FCC Commissioner] Brendan Carr."

Carr is on the record strongly supporting President Trump's efforts to modify/clarify/narrow Sec. 230. Many Republicans, including Trump and Carr, argue that social media sites are using Sec. 230 immunity as a shield for their efforts to censor conservative speech. AFPF says that the FCC has no authority to regulate social media using the section.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.